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EXHIBIT 2(b)
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 4th day of March,
1999, by and among REGENT BROADCASTING OF KINGMAN, INC., a Delaware corporation
("RBK"), and REGENT LICENSEE OF KINGMAN, INC., a Delaware corporation ("RLK")
(RBK and RLK being collectively referred to as "Sellers"), and MAG MILE MEDIA,
L.L.C., a Delaware limited liability company ("Buyer").
WHEREAS, RBK is the owner and operator, and RLK is the licensee, of
Radio Stations KAAA (AM) and KZZZ (FM), which are licensed to Kingman, Arizona,
and Radio Stations KFLG (AM) and KFLG (FM), which are licensed to Bullhead City,
Arizona, (hereinafter referred to collectively as the "Stations" and each a
"Station"); and
WHEREAS, Buyer desires to purchase, and Sellers desire to sell, all of
the fixed, tangible, and intangible assets of Sellers used or held for use in
the operation of the Stations, defined herein as the "Broadcast Assets", and to
obtain assignments of the licenses issued by the Federal Communications
Commission (the "Commission") for the operation of the Stations, and of other
licenses, permits or authorizations issued by any governmental entity in
connection therewith; and
WHEREAS, the licenses issued by the Commission for the operation of the
Stations may not be assigned by RLK to Buyer without the prior written consent
of the Commission; and
WHEREAS, Buyer and Sellers have negotiated a price (hereinafter called
the "Purchase Price") for the sale and purchase of the Broadcast Assets
(hereinafter defined) of the Stations.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, and subject to the conditions hereinafter set forth, the
parties hereto agree as follows:
DEFINITION OF TERMS
1. Recitals. The foregoing recitals are hereby incorporated herein and
made a part hereof.
2. Definition of Terms. As used herein, the following terms shall have
the following meanings:
(a) "Commission" means the Federal Communications Commission.
(b) "Commission's Order" means the action of the Commission
consenting to the assignment to Buyer of the Licenses.
(c) "Final Order" means the Commission's Order as to which the
time for filing a request for all administrative or judicial review or for
motion by the Commission
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ordering review shall have expired without any such motion or filing having been
made, or in the event of such motion or filing, the Commission's Order shall
have been reaffirmed or upheld and the time for seeking further administrative
or judicial review with respect thereto shall have expired without any request
for such further review having been filed.
(d) "Licenses" means the licenses, permits, approvals,
consents and authorizations issued by the Commission for the Stations and all
associated auxiliary broadcast stations, all as listed on Schedule A attached
hereto.
(e) "Closing Date" means the date, time and place designated
by not less than seven (7) days' written notice from Buyer to Sellers, which
date shall not be less than seven (7) days after the Commission's Order and not
more than fifteen (15) days after the Final Order, or such other date within the
effective period (including any extension thereof) of the Commission's Order as
shall be mutually agreed upon by Sellers and Buyer. The parties will seek to
obtain any extension of the effective period of the Commission's Order as may be
necessary under this provision. The parties agree that the Closing Date may, by
mutual agreement, be prior to the date on which the Commission's Order becomes a
Final Order; provided, however, in such event the Closing will take place
subject to the terms of an agreement to unwind the transaction and return the
parties to their original positions should the Commission's Order thereafter be
reversed. "Closing" means the transfer of the Broadcast Assets and the
consideration therefor, together with the other documents and consideration
provided herein.
(f) "Broadcast Assets" means:
(i) The Licenses listed on Schedule A and the Public
Inspection Files maintained in connection therewith.
(ii) The leases, contracts and agreements relating to
the operation of the Stations which are described in Schedule B (as may be
supplemented by Sellers with Buyer's consent) and which are in effect on the
Closing Date, plus such other leases, contracts, and agreements not described in
subsections (f)(iii) and (f)(iv) below that are entered into in the ordinary
course of business and relate to the operation of the Stations after the date
hereof.
(iii) All contracts for the sale for cash of
broadcast time or advertising on the Stations on or after the Closing Date which
are valid and enforceable as of the Closing Date and which are to be assumed or
conveyed under Sections 3(a) and 3(b).
(iv) All contracts for the sale of broadcast time or
advertising on the Stations in exchange for merchandise or services (or a
combination of merchandise or services and cash) on or after the Closing Date
which are valid and enforceable as of the Closing Date up to $15,000 in
liability in the aggregate and which are to be assumed or conveyed under
Sections 3(a) and 3(b) hereof.
(v) All the tangible property, assets, furniture,
fixtures, supplies, materials, goods, receivers, tapes, programming, music
libraries, transmitters, switches,
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equipment and all other personal property used or held for use in the operation
of the Stations, including, without limitation, that listed on Schedule C, and
including replacements thereof or additions thereto made between the date hereof
and the Closing Date, less any retirements made in the ordinary and usual course
of business, which are not currently used in the operation of the Stations or
are otherwise replaced and excluding any tangible personal property leased by
Sellers (as listed in Schedule C-1).
(vi) The spare parts and inventory of RBK relating to the
items set forth in Schedule C.
(vii) Goodwill, privileges, permits, copyrights, logos,
jingles, brand names, service marks, trademarks and trade names (including
rights in applications in connection therewith), and other intangible rights,
including rights to the call letters of the Stations owned by Sellers and used
in the operation of the Stations or in connection with the Broadcast Assets, as
described on Schedule D.
(viii) Such of the correspondence, files, records, books of
account, programming studies, advertising reports, software (to the extent
transferable), operating and marketing plans, logs, advertising lists, customer
and vendor lists, copy and other files, books, writings and records of the
Sellers that relate to the business and operations of the Stations (but all of
the foregoing shall thereafter for a period of seven (7) years following the
Closing Date be available for reasonable inspection and duplication by Sellers
at their expense, upon reasonable request during normal business hours).
(ix) The real property including fixtures, buildings and
improvements thereon and all appurtenant rights owned by Sellers described on
Schedule E attached hereto (the "Owned Real Property").
(x) The leases of Real Property with respect to Real Property
leased by Sellers described on Schedule F attached hereto (the "Leased Real
Property").
The Broadcast Assets do not include at Closing (1) cash or cash equivalents on
hand or in banks, (2) accounts receivable, (3) property employed solely in the
general corporate operations of Sellers, (4) property not located at the
Stations' facilities and used or useful in the operations of any other stations
owned or operated by any affiliate of Sellers (provided that such property is
not currently used in the operation of the Stations), (5) books and records of
the Sellers other than those specified in subsection 1(f)(viii) above and those
Buyer is required to maintain by reason of the Commission rules or by law, (6)
all pension, profit sharing or cash or deferred (Section 401(k)) plans and
trusts and the assets thereof and any other employee benefit plan or
arrangement, if any, maintained by Sellers, and (7) Sellers' rights, claims, and
causes of action against third parties (including, without limitation, any
rights under insurance policies and any rights to tax refunds). Sellers shall
maintain copies of and make available to Buyer for a period of seven (7) years
those items in number (5) above for reasonable inspection and duplication by
Buyer at its expense, upon reasonable request during normal business hours.
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In addition to the conveyance of the Broadcast Assets, prepaid
expenses, deposits and deferred charges of the Stations as of the Closing Date,
determined in accordance with generally accepted accounting principles, shall be
prorated pursuant to Section 17 hereof.
(g) "Financials" means the financial statements of Sellers
relating to the Stations furnished by Sellers to Buyer and consisting of
unaudited statements of operations and cash flows for the twelve-month period
ended December 31, 1998, identified on Schedule H.
(h) "Permitted Encumbrances" is defined in Section 14(k).
(i) "Time Brokerage Agreement" is defined in Section 26.
ASSETS TO BE SOLD
3. Assets to be Conveyed. On the Closing Date, subject to the terms and
conditions of this Agreement, Sellers will assign, transfer and deliver or cause
to be delivered to Buyer all of the Broadcast Assets free and clear of all
debts, liens, security interests, claims, encumbrances and other liabilities of
any nature whatsoever, except for Permitted Encumbrances and as otherwise
provided in Section 4 of this Agreement, and will execute and deliver to Buyer
all such assignments, bills of sale, deeds, leases, and other documents and
instruments as may be required by this Agreement or as Buyer or Buyer's counsel
may reasonably request (in a form acceptable to Buyer's counsel) in order to
sufficiently effectuate the transfer and sale of the Broadcast Assets to Buyer
as of the Closing Date.
4. Assumption of Certain Liabilities.
(a) On the Closing Date, Buyer will assume, and indemnify,
defend and hold Sellers harmless from, the liabilities of Sellers under the
contracts, agreements and leases included in the Broadcast Assets as described
in subsections 2(f)(ii), 2(f)(iii), and 2(f)(iv), which are applicable to the
period after the Closing Date, and Buyer shall execute and deliver to Sellers
all documents and instruments as may be required by this Agreement and as
Sellers may reasonably request (in a form acceptable to Seller's counsel) in
order to sufficiently effectuate such assumption of obligations.
(b) The foregoing notwithstanding, Buyer shall not be
obligated to assume Sellers' obligations under any "trade out" agreements to the
extent there exists a net negative barter balance (the amount by which the value
of the service yet to be rendered under all such agreements collectively by the
Stations exceeds the consideration yet to be received by the Stations therefor),
based upon the Stations' then prevailing rates, in excess of $15,000.00 except
to the extent that any such excess is treated as prepaid time sales for cash and
adjusted for as a proration in Buyer's favor at Closing under Section 17. All
consideration received or to be received by Sellers from such "trade out"
accounts not consumed by the Sellers in the ordinary course of business shall be
a Broadcast Asset.
(c) In no event shall Buyer assume or be responsible for any
obligations or liabilities of Sellers except to the extent provided in
subsections 4(a) and 4(b). Without limiting
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the generality of the foregoing, except to the extent provided in subsections
4(a) and 4(b), Buyer shall in no event assume or be responsible for: (i) any
liability with respect to any action, suit, proceeding, arbitration,
investigation, claim or inquiry against Sellers, whether civil, criminal or
administrative ("Litigation"), whether or not described in a schedule; (ii) all
liabilities incurred by either Seller in connection with this Agreement and the
transactions contemplated herein, including, without limitation, tax
liabilities: (iii) any liability of either Seller for federal income taxes and
any state or local income, profit, franchise, property or other taxes of any
nature, and any penalties or interest due on account thereof; (iv) liabilities
of either Seller for any breach or failure to perform any of such Seller's
covenants and agreements contained in, or made pursuant to, this Agreement, or,
prior to the Closing, any other contract, whether or not assumed hereunder,
including any breach arising from assignment of contracts hereunder without
consent of third parties; (v) liabilities of either Seller for any violation of
or failure to comply with any statute, law, ordinance, rule or regulation
(collectively, "Laws") or any order, writ, injunction, judgment, plan or decree
(collectively, "Orders") of any court, arbitrator, department, commission,
board, bureau, agency, authority, instrumentality or other body, whether
federal, state, municipal, foreign or other (collectively, "Government
Entities"): (vi) liabilities of either Seller to its present or former
Affiliates; and (vii) liabilities for all pension, profit sharing, retirement,
bonus, medical, dental, life, accident insurance, disability, executive or
deferred compensation, and other similar fringe or employee benefit plans.
"Affiliate" shall have the meaning given such term in Rule 13e-3 under the
Securities Exchange Act of 1934, as amended, and shall include all shareholders,
directors and officers of each Seller.
PURCHASE PRICE
5. Purchase Price and Payment Thereof.
(a) The Purchase Price for the Broadcast Assets, to be
allocated among the Broadcast Assets according to Schedule G, shall be Five
Million Four Hundred Thousand Dollars ($5,400,000.00) and shall be payable,
including the cash portion of the Escrow Deposit and less or plus prorations and
adjustments made pursuant to Section 18 of this Agreement, in cash at the
Closing by wire transfer of immediately available funds to such account as is
specified by Sellers.
(b) On or before the date of this Agreement, Buyer has
deposited in escrow with Star Media Group, Inc., as Escrow Agent ("SMG"),
pursuant to the provisions of a Deposit Escrow Agreement in the form of Exhibit
A hereto among Sellers, Buyer and SMG (the "Deposit Escrow Agreement"), cash
and/or an irrevocable, stand-by letter of credit (in form and substance
acceptable to Sellers) in the aggregate amount of $270,000,00 (the "Escrow
Deposit"), to be held in escrow and applied as set forth herein and in the
Deposit Escrow Agreement; provided, however, the Escrow Deposit shall consist of
at least $50,000.00 in cash. At the Closing, the cash portion of the Escrow
Deposit shall be applied to the Purchase Price to be paid to Sellers, the
interest accrued thereon shall be paid to Buyer, and the letter of credit shall
be returned to Buyer. As more fully described in the Deposit Escrow Agreement:
(i) in the event this Agreement is terminated because of Buyer's breach of
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this Agreement and all other conditions to Closing are at such time satisfied or
waived (other than such conditions as can reasonably be expected to be satisfied
by the Closing), the Escrow Deposit shall be distributed to Sellers and the cash
proceeds therefrom shall constitute liquidated damages as provided in Section 26
(a) hereto for Buyer's breach of this Agreement (the receipt of such amount by
Sellers shall be Seller's sole remedy and shall discharge any liability Buyer
may have to Sellers), and the interest accrued on the Escrow Deposit shall be
paid to Buyer; (ii) in the event this Agreement is terminated because of
Sellers' breach of this Agreement and all other conditions to Closing are at
such time satisfied or waived (other than such conditions as can reasonably be
expected to be satisfied by the Closing), the Escrow Deposit and the interest
thereon shall be distributed to Buyer; and (iii) in the event this Agreement is
terminated under any circumstances other than those set forth in the immediately
preceding clauses (i) and (ii), the Escrow Deposit, including all accrued
interest thereon, shall be distributed to Buyer.
COMMISSION MATTERS
6. Commission Consent to Assignment of Licenses. Notwithstanding
anything herein to the contrary, the terms and conditions of this Agreement are
subject prior to Closing to the Commission's Order (and, except as hereafter
otherwise mutually agreed, to a Final Order) granting consent to the assignment
of the Licenses by RLK to Buyer.
7. Application for Consent-Cooperation of the Parties. Buyer and
Sellers shall join in an application or applications to be filed with the
Commission requesting consent to the assignment of the Licenses. They shall file
with the Commission within five (5) business days of the date of this Agreement
the necessary application and expeditiously prosecute all necessary amendments
to such application, briefs, pleadings, documents and supporting data, and take
all such actions and give all such notices as may be required or requested by
the Commission or as may be appropriate in an effort to expedite the approval of
the Commission of the assignment of the Licenses to Buyer.
8. Costs and Expenses. Buyer and Sellers each shall bear its own legal
and accounting fees and other costs and expenses with respect to this
transaction, including preparation and prosecution of Commission applications.
The cost of filing fees and grant fees, if any, imposed by the Commission shall
be borne equally by Buyer and RLK. Sellers shall pay all sales, transfer and
documentary taxes, and Buyer shall pay all recording fees.
9. Operation of the Stations Before Closing. Between the date of this
Agreement and the Closing Date, Sellers (i) will continue to operate the
Stations under the terms of the Licenses in the public interest, convenience and
necessity and (ii) will file with the Commission all documents required to be
filed in connection with the operation of the Stations. Between the date hereof
and the Closing Date, Sellers and Buyer shall provide the other with copies of
all correspondence received from or filed with the Commission with respect to
the Stations, the above application or any of the same.
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10. Control and Access. Prior to Closing, Buyer and its agents shall
not directly or indirectly (i) control, supervise or direct, or (ii) attempt to
control, supervise or direct, the operations of the Stations. Such operations
shall be the sole responsibility of and in the complete discretion of Sellers.
In addition to rights granted to Buyer under the Time Brokerage Agreement
(hereinafter defined), Buyer shall be permitted reasonable observation and
access and inspection of the records and property of the Stations during regular
business hours in such a manner as to not interfere unreasonably with the normal
operations of the Stations.
11. Conditions on Assignment Consent. In the event the Commission's
Order consenting to assignment of the Licenses to Buyer contains a condition,
arising other than in connection with any action or omission of Buyer and Buyer
reasonably determines in good faith that the condition is materially adverse to
Buyer and prevents Buyer from operating the Stations in substantially the same
manner as owned and operated by Sellers, then the parties will cooperate in
seeking the removal or mitigation of such condition until the earlier to occur
of (1) the reconsideration by the Commission on terms reasonably acceptable to
Buyer in accordance with the standards set forth above or (ii) the expiration of
90 days from the effective date of the Commission's Order (the "Reconsideration
Period"). Notwithstanding the foregoing, no party shall be obligated to
participate in an evidentiary hearing before the Commission. If the Commission
has not taken the action specified in (i) above by the termination of the
Reconsideration Period, Buyer shall have the right to terminate this Agreement
upon written notice to Sellers within 10 days after the expiration of the
Reconsideration Period. If Sellers do not agree with Buyer's determination that
a condition is materially adverse to Buyer, the matter shall be submitted to
arbitration in Phoenix, Arizona in accordance with the rules of the American
Arbitration Association, and the results thereof shall be binding upon the
parties.
12. Time for Commission Consent-Termination. If no Final Order
consenting to the assignment of all the Licenses to Buyer is secured on or
before the expiration of six (6) months from the filing of the 314 application,
this Agreement may be terminated at the option of either Sellers or Buyer
provided that the action or inaction of the terminating party is not the reason
the Final Order has not been granted, upon the giving of ten (10) days' written
notice to the other and, in the absence of material breach by either of the
parties, Buyer and Sellers shall thereupon be released and discharged of all
obligations hereunder, and the Escrow Deposit shall be distributed in accordance
with the provisions of Section 4(b)(iii) hereof.
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ACCOUNTS RECEIVABLE
13. Collection. The accounts receivable of Sellers are not included
among the Broadcast Assets. Nevertheless, at Closing, RBK shall supply Buyer
with a list of RBK's accounts receivable as of the Closing Date (the
"Accounts"), and Buyer shall use such efforts as are reasonable and in the
ordinary course of business to collect the Accounts on RBK's behalf for a period
of sixty (60) days from the Closing Date (the "Collection Period"). This
obligation, however, shall not extend to the institution of litigation,
employment of counsel, or any other extraordinary means of collection. During
the Collection Period, Sellers shall not solicit any monies from an account
debtor who, after Closing, continues to do business with the Stations, provided
that during such period RBK may act to preserve its rights against a bankrupt
debtor or commence suit or otherwise take action against any debtor that
disputes the amount of, or liability for, an Account. If RBK receives a payment
from an account debtor during the Collection Period, it shall so notify Buyer.
Buyer may endorse and deposit in its own name and collect any and all checks and
other instruments for the payment of money that Buyer may receive in payment of
Accounts. Buyer shall receive no remuneration for its services and shall not be
liable for non-collection, or failure of any such collection, except due to its
own gross negligence or intentional misconduct. Upon termination of its duties
hereunder, Buyer shall deliver to RBK all of its correspondence and files
concerning the collection of the Accounts and all reports of attempts to collect
the same. Except as otherwise provided herein, amounts collected by Buyer on
account of RBK's Accounts shall be remitted in full to RBK on a monthly basis,
by the fifteenth (15) day of the month following the month for which remittance
is due. Buyer shall deliver to RBK an accounting showing the amount it received
during each period on each account. If both RBK and Buyer are entitled to
accounts receivable from the same account debtor, all payments received during
the Collection Period shall be first applied to RBK's Accounts from such account
debtor until the same are paid in full, unless such account debtor has disputed
such account receivable in writing to RBK, in which event Buyer shall be
entitled to apply the payment made by the account debtor to Buyer's account
receivable. At the conclusion of the Collection Period and after remittance of
all amounts collected, Buyer will thereafter have no further responsibility with
respect to the collection of the Accounts, and Buyer may apply all collections
received by Buyer from any Account party who continues business with Buyer to
obligations owing to Buyer, except for any payment received by Buyer which such
Account party specifies is for amounts owed to RBK, in which event such
specified amounts shall be paid over to RBK. Buyer shall not have the right to
compromise, settle or adjust the amounts of any one of the Accounts without
RBK's prior written consent. RBK shall promptly pay all sales commissions
relating to all of its accounts receivable whenever RBK receives payment
thereon.
COVENANTS, REPRESENTATIONS
AND WARRANTIES OF SELLERS
14. Covenants, Representations and Warranties of Sellers. Sellers make
the following covenants, representations and warranties:
(a) Corporate Standing and Authority.
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(i) Each Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and each
is duly licensed or qualified to do business as a foreign corporation, and is in
good standing, in all such other states where its business requires such
qualification, and each Seller has all corporate power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby.
(ii) This Agreement, all other documents referred to
herein to be signed by Sellers, and the transactions contemplated hereby have
been duly authorized and approved by the Board of Directors of each Seller and
its sole shareholder, and copies of all corporate proceedings of said
corporations relating to such authorization and approval, certified by its
Secretary, will be delivered to Buyer at Closing. This Agreement constitutes a
valid and binding obligation of Sellers, enforceable in accordance with its
terms, subject to bankruptcy laws, other federal and state laws affecting
creditors' rights generally and the availability of equitable remedies.
(b) Title to Broadcast Assets. RLK, as to the Licenses, and
RBK, as to the other Broadcast Assets, have good and marketable title to the
Broadcast Assets, free and clear of all liens, mortgages, pledges, conditional
sales agreements, security interests, charges and encumbrances, except for such
liens as will be released and discharged on or prior to the Closing Date and
except, as to any real property included in the Broadcast Assets, for Permitted
Encumbrances.
(c) Financials. Included as part of Schedule H is a true and
complete copy of the Financials relating to the operation of the Stations for
the twelve-month period ended December 31, 1998. For the period of ownership of
the Stations by Sellers, such Financials are true, complete and accurate, have
been prepared in accordance with generally accepted accounting principles
(except for the absence of footnote disclosure) applied on a consistent basis,
have been prepared in accordance with the books and records of Sellers, and
fairly present, in accordance with generally accepted accounting principles,
results of operations and cash flows of RBK as of the date and for the periods
indicated. Sellers have also provided to Buyer copies of financial statements
received at the time of Sellers purchase of the Stations in June of 1998, as
included in Schedule H (the "Prior Financials"); provided, however, that no
representation or warranty is made by Sellers with respect to the Prior
Financials.
(d) Accounts Receivable. All accounts receivable of Sellers
relating to the operation of the Stations are listed on Schedule I as of the
date indicated and represent arm's length sales actually made in the ordinary
course of business, are to the best of each Sellers knowledge, collectible (net
of reasonable reserves for doubtful accounts) in the ordinary course of business
without the necessity of commencing legal proceedings, are subject to no
counterclaim or setoff, and are not in dispute. Schedule I contains an aged
schedule of all such accounts receivable.
(e) Contracts. Schedule B is a complete list or description of
all material written and oral contracts relative to the Stations in existence at
the date of this Agreement which are enforceable against RBK (other than
contracts for the sale of radio time or
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advertising). All contracts for the sale of broadcast time or advertising on the
Stations in exchange for merchandise or services on or after the date hereof to
which RBK is a party or by which it is bound are preemptible for cash sales.
True and complete copies of all contracts, leases and agreements listed in
Schedule B have been made available to Buyer. RBK has and on the Closing Date
will have paid all of its obligations and otherwise will not be in material
default under any of the contracts, leases and agreements listed on Schedule B
or otherwise to be assumed by Buyer hereunder; and each shall be in full force
and effect and unimpaired by any acts or omissions of RBK, its agents or
employees on the Closing Date, except for those that shall previously have
expired by passage of time in accordance with their respective terms.
(f) Licenses. Schedule A is a complete list of all Licenses
currently held by RLK for the Stations. The Licenses constitute all licenses,
permits, approvals, authorizations and consents of the Commission required for
the operation of the Stations. The Licenses are currently in effect and are
subject to no restrictions of such a nature as would materially limit the full
operation of the Stations as presently authorized and conducted. The Licenses
have been renewed in the normal course at their last renewal date with the
normal expiration date. The operation of the Stations is in all material
respects in accordance with the Licenses. Sellers have no knowledge of any
matter that might result in the suspension or revocation of the Licenses. There
are no Commission citations outstanding with respect to the Stations or their
operations. There are no petitions to deny, material complaints or proceedings
known by Sellers to be pending before the Commission against the Stations or the
Sellers (other than rulemakings of general applicability to the broadcast
industry or a substantial segment thereof) and relating to the business and
operation of the Stations.
(g) Tangible Broadcast Assets. Without material omission, all
of the Broadcast Assets, including, without limitation, tangible property and
assets of RBK used or held for use in the operation of the Stations as of the
date hereof are listed on Schedule C. All equipment actually used in connection
with, and necessary for, the operation of the Stations including, without
limitation, antennas, transmitters, and other studio and transmitting equipment
is in good operating condition (ordinary wear and tear excepted) consistent with
the terms of the Stations' licenses, all underlying construction permits, and
the Commission's rules and regulations and building, zoning and other laws; and
on the date of this Agreement there are no orders or citations outstanding
requiring any repairs, improvements or modifications with respect thereto.
(h) Laws and Regulations. On the date hereof and at Closing,
the Stations will be in compliance in all material respects with all applicable
federal, state and local laws, ordinances and regulations, including to the best
of Sellers' knowledge, applicable Environmental Laws (as defined below). Sellers
agree that prior to the Closing Date, if they become aware of any violations of
the Communications Act of 1934, or of the Rules and Regulations of the
Commission, they will use their best efforts to remove all such violations and,
unless the violation has been caused by Buyer from acts under the Time Brokerage
Agreement, be responsible for the costs of removing such, including the payment
of any fines that may be assessed before or after Closing for any such
violations. Sellers are not in default
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with respect to any judgment, order, injunction or decree of any court,
administrative agency, or other governmental authority in any respect material
to this transaction.
(i) Compliance. Except as set forth in Schedule J, the
Stations (including each and all of their operations and practices) and the
Broadcast Assets are in compliance in all material respects with all applicable
Laws and Orders, including, without limitation, those applicable to trade
practices, competition and pricing, zoning, building and sanitation, product
advertising and the Environmental Laws, as hereinafter defined. Except as set
forth in Schedule J, neither Seller has received notice of any violation or
alleged violation pertaining to the operation of the Stations, and is subject to
no liability for, past or continuing violation pertaining to the operation of
the Stations, of any Laws or Orders. All reports and returns pertaining to the
Stations required to be filed by Sellers with any government entity have been
filed and were accurate and complete when filed. The operation of the Stations
as it is now conducted does not, nor does any condition existing at any of
either Seller's or the Stations' facilities, in any manner constitute a nuisance
or other tortuous interference with the rights of any person or persons in such
a manner as to give rise to or constitute the grounds for a meritorious suit,
action, claim or demand by any such person or persons seeking compensation or
damages or seeking to restrain, enjoin or otherwise prohibit any aspect of the
conduct of such business or the manner in which it is now conducted.
(j) Environmental Matters. The applicable laws relating to
pollution or protection of the environment, including laws relating to
emissions, discharges, generation, storage, releases or threatened releases of
pollutants, contaminants, chemicals or industrial, toxic, hazardous or petroleum
or petroleum-based substances or wastes ("Waste") into the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Waste including, without limitation, the Clean Water Act, the Clean
Air Act, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act and the Comprehensive Environmental Response Compensation Liability
Act ("CERCLA"), as amended, and their state and local counterparts are herein
collectively referred to as the "Environmental Laws". Without limiting the
generality of the foregoing provisions of this Section 14, each Seller is in
full compliance in all material respects with all limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in the Environmental Laws or contained in any regulations,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder. There is no litigation nor any
demand, claim, hearing or notice of violation pending or, to the best of each
Seller's knowledge, threatened against either Seller relating in any way to the
Environmental Laws or any order issued, entered, promulgated or approved
thereunder. Except as set forth in Schedule K, there are no past, present, or,
to the best of each Seller's knowledge, anticipated events, conditions,
circumstances, activities, practices, incidents, actions, omissions or plans
which may materially interfere with or prevent compliance or continued
compliance with the Environmental Laws or with any order issued, entered,
promulgated or approved thereunder, or which may give rise to any liability,
including, without limitation, liability under CERCLA or similar state or local
laws, or otherwise form the basis of any litigation, hearing, notice of
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violation, study or investigation, based on or related to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling, or the emission, discharge, release or threatened release into the
environment, of any Waste.
(k) Marketable Title. On the Closing Date, other than Liens
that will be satisfied at Closing, Sellers shall have and convey good and
marketable title to all the Broadcast Assets, free and clear of all mortgages,
liens (statutory or otherwise), security interests, claims, pledges, licenses,
equities, options, conditional sales contracts, assessments, levies, easements,
covenants, reservations, restrictions, rights-of-way, exceptions, limitations,
charges or encumbrances of any nature whatsoever (collectively, "Liens"); other
than in the case of real property, Liens for taxes and assessments not yet due
or which are being contested in good faith by appropriate proceedings (and which
have been sufficiently accrued or reserved against in the Recent Balance Sheet);
municipal, building and zoning ordinances; easements, restrictions and
agreements described on Schedule E; and easements for public utilities which do
not materially interfere with the use of the Broadcast Assets as currently
utilized or materially and adversely affect the marketability of the Broadcast
Assets ("Permitted Encumbrances"). Except as set forth on Schedule L, none of
the Broadcast Assets is subject to any restrictions with respect to the
transferability thereof, and Sellers have complete and unrestricted power and
right to sell, assign, convey and deliver the Broadcast Assets to Buyer as
contemplated hereby. At Closing, Buyer will receive good and marketable title to
all the Broadcast Assets, free and clear of all Liens of any nature whatsoever
except Permitted Encumbrances.
(l) Condition. All buildings, towers and other structures
owned or otherwise utilized by Sellers are in good condition and repair (normal
wear and tear excepted) and have no structural defects or material defects
affecting the plumbing, electrical, sewerage, or heating, ventilating or air
conditioning systems.
(m) Real Property. Schedule E sets forth all real property
owned, used or occupied by Sellers, including a description of all land, and all
encumbrances, existing leases, easements or rights of way of record (or, if not
of record, of which either Seller has notice or knowledge) granted on or
appurtenant to or otherwise affecting the Owned Real Property, and all towers,
buildings or other structures located thereon. Schedule F sets forth, with
respect to each parcel of Leased Real Property the material terms of such lease.
Except for provisions contained in leases or licenses referred to on Schedule F,
no fact or condition exists which would prohibit or adversely affect the
ordinary rights of access to and from the Owned or Leased Real Property from and
to the existing highways and roads and there is no pending or, to the best of
Seller's knowledge, threatened restriction or denial, governmental or otherwise,
upon such ingress and egress. There is not (i) any claim of adverse possession
or prescriptive rights involving any of the Owned Real Property or, to the best
of Sellers' knowledge, the Leased Real Property, (ii) any structure located on
any Owned Real Property or, to the best of Sellers' knowledge, the Leased Real
Property which encroaches on or over the boundaries of neighboring or adjacent
properties or (iii) any structure of any other party which encroaches on or over
the boundaries of any of such Owned Real Property or, to the best of Sellers'
knowledge, the Leased Real Property. None of the Owned Real Property or, to the
best of
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Sellers' knowledge, the Leased Real Property is located in a flood plain, flood
hazard area, wetland or lakeshore erosion area within the meaning of any Law. No
public improvements have been commenced and to each Seller's knowledge none are
planned which in either case may result in special assessments against or
otherwise materially adversely affect any Owned or Leased Real Property. To the
best of Seller's knowledge, no portion of any of the Owned or Leased Real
Property has been used as a landfill or for storage or landfill of hazardous or
toxic materials. Neither Seller has notice or knowledge of any (i) planned or
proposed increase in assessed valuations of any Owned or Leased Real Property,
(ii) order requiring repair, alteration, or correction of any existing condition
affecting any Owned or Leased Real Property or the systems or improvements
thereat, (iii) condition or defect which could give rise to an order of the sort
referred to in clause (ii) above, or (iv) underground storage tanks, or any
structural, mechanical, or other defects of material significance affecting any
Owned or Leased Real Property or the systems or improvements thereat (including,
but not limited to, inadequacy for normal use of mechanical systems or disposal
or water systems at or serving the Owned or Leased Real Property).
(n) No Condemnation or Expropriation. Neither the whole nor
any portion of the Broadcast Assets is subject to any Order to be sold or is
being condemned, expropriated or otherwise taken by any Government Entity with
or without payment of compensation therefor, nor to the best of either Seller's
knowledge has any such condemnation, expropriation or taking been proposed.
(o) No Certified Survey Map Required. To the best knowledge of
Sellers, no certified survey map or other state, municipal, or other
governmental approval regarding the division, platting, or mapping of real
estate is required as a prerequisite to the conveyance by RBK to Buyer (or as a
prerequisite to the recording of any conveyance document) of any Owned Real
Property pursuant to the terms hereof.
(p) Insurance. Set forth in Schedule M is a complete and
accurate list and description of all policies of fire, liability and other forms
of insurance presently in effect with respect to the Stations and properties of
Sellers used or held for use in the operation of the Stations, true and correct
copies of which have been delivered to Buyer. All of the Broadcast Assets which
are of an insurable character are insured for fair market value, less reasonable
deductibles, by financially sound and reputable insurance companies against loss
or damage by fire and other risks to the extent and in the manner customary for
such Broadcast Assets. RBK will maintain or cause to be maintained such
insurance until the Closing Date. RBK has not received any notice from any of
its insurance carriers covering the Stations that any insurance coverage will
not be available in the future on substantially the same terms as now in effect.
No notice of cancellation or termination has been received with respect to the
policies.
(q) Disposition of Assets. Between the date hereof and the
Closing Date, Sellers will not transfer, convey or assign to any other person
any of the Broadcast Assets unless such disposition is in the ordinary course of
business or otherwise agreed to in writing by Buyer.
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(r) Trade-Out Agreements. Subject to the terms of the Time
Brokerage Agreement, RBK will encourage advertisers to use prior to the Closing
Date the broadcast time available to them under all existing arrangements for
the exchange of advertising time for considerations other than cash ("trade-out
agreements"). RBK covenants and agrees that at the Closing Date there will be no
trade-out agreements to which RBK is a party which shall require the broadcast
of advertising following the Closing Date (i) unless approved in writing by
Buyer or (ii) unless such were entered into in the ordinary course of business
and are preemptible for cash sales. At the Closing, RBK will deliver to Buyer a
schedule of all trade-out agreement payables and receivables, together with all
contracts pertaining thereto not previously delivered.
(s) Transmitter Site. To the best of Sellers' knowledge, the
Stations' transmitter sites are not the subject of any official complaint or
notice of violation of any applicable zoning ordinance or building code and no
such violation is known to exist. To the best of Sellers' knowledge, there is no
zoning ordinance or building code or use or occupancy restriction or
condemnation proceeding pending or threatened, which would preclude or
materially impair the use of such real estate or the improvements thereon by
Buyer in the manner and for the purpose for which it is presently used.
(t) Litigation. There is no litigation, action, suit,
investigation or proceeding pending, or to the best of Sellers' knowledge,
threatened, against Sellers which may give rise to any claim against any of the
assets to be conveyed or upon Sellers' ability to perform in accordance with the
terms of this Agreement, or which might result in a material monetary forfeiture
or in any material adverse effect upon the business or assets of Sellers or the
Stations.
(u) No Conflict. The execution, delivery and performance by
Sellers of this Agreement and the consummation of the transactions contemplated
hereby by Sellers will not (i) violate, conflict with or result in the breach of
any provision of the Certificate of Incorporation or By-Laws of Sellers; (ii)
violate any order, writ, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, Sellers
or upon the assets of Sellers which violation could give rise to a valid claim
for injunction or other equitable relief or for damages; and (iii) subject to
obtaining the approvals, consents and permits or making the filings referred to
in this Agreement, (A) violate any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to the Stations or to
the assets of Sellers, which violation could have a material adverse effect on
the ability of Sellers to perform their obligations hereunder, (B) violate or
result in the revocation or suspension of any license or permit, the loss of
which could have a material adverse effect on the assets, results of operations
or financial condition of the Stations, or (C) require the consent of any third
party other than the required consent of Xxxxxx-Xxxxxx Media Partners, L.P.
(which Sellers covenant to exercise all diligent and reasonable efforts to
obtain).
(v) Consents. Except for the approvals required by the
Commission, there are no authorizations, consents or approvals of, or filings
with, any governmental regulatory
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authority required by Sellers in connection with the execution of this Agreement
or the consummation of the transactions contemplated hereby.
(w) Qualifications for Assignment. RLK is presently a licensee
in good standing with the Commission and RLK knows of no reason why the
Commission would not approve the assignment of licenses contemplated by this
Agreement or the renewal of the Stations' licenses set forth in Schedule A.
(x) Absence of Certain Changes. Between December 31, 1998, and
the date of this Agreement, there has not been:
(i) Any damage, destruction or loss (whether or not
covered by insurance) adversely affecting the Broadcast Assets in a material
manner;
(ii) Any sale, assignment, lease or other transfer or
disposition of any of the properties or assets used or intended for use in the
operation of the Stations except in the ordinary course of business, or in
connection with the acquisition of similar property or assets in the normal and
usual course of business;
(iii) Any contract, obligation, or commitment entered
into in connection with the operation of the Stations except in the normal and
usual course of business; and
(iv) Any material change in the accounting methods or
practices of the Stations, or the depreciation or amortization policies or rates
with respect to the Stations.
(y) Labor Relations. Sellers are not parties to or subject to
any collective bargaining or similar agreement with any labor union with respect
to the employees of Sellers. As of the date of this Agreement, there are no
actions or proceedings pending or, to the best of Sellers' knowledge, threatened
between Sellers and any of their employees or any labor union, nor is there, to
the best of Sellers' knowledge, any attempt by any labor union to gain
recognition as the bargaining representative of any of the employees of Sellers.
Schedule N contains a true and correct list of all employees to whom either
Seller is paying compensation, including bonuses and incentives, at an annual
rate in excess of EIGHT THOUSAND DOLLARS ($8,000) for services rendered or
otherwise; and in the case of salaried employees such list identifies the
current annual rate of compensation for each employee and in the case of hourly
or commission employees identifies certain reasonable ranges of rates and the
number of employees falling within each such range.
(z) Tax Matters. The Financials contain adequate provisions
for all material federal income, accumulated earnings, payroll, F.l.C.A.,
unemployment, withholding and other federal taxes and all state and local
income, franchise, real property, personal property, sales, payroll, disability,
unemployment, withholding and other taxes imposed on Sellers or their properties
or rights or otherwise payable by them, including interest and penalties, if
any, in respect thereof, for the period ended on said date and all fiscal
periods prior thereto. No deficiency in payment of any taxes for any period has
been asserted or proposed by any taxing
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body at the date hereof, and all reports or returns required to be filed by
Sellers with any federal body or authority (and, to the best of Sellers'
knowledge, with any state or local governmental body or authority) with respect
to the Stations have been properly completed and filed in a timely manner, and
any and all amounts shown on such returns and reports to be due and payable have
been paid in full except to the extent, if any, that the failure to so file or
so pay could not lead to the imposition of any liability upon Buyer or lien or
encumbrance upon any of the Broadcast Assets.
(aa) Negative Covenants. Between the date hereof and the
Closing Date, Sellers, with respect to the Stations, will not without the prior
written consent of Buyer, not to be unreasonably withheld:
(i) Enter into any contract or commitment or engage
in any transaction relating to the Stations except in the normal and usual
course of business;
(ii) Create any mortgage, pledge, lien or encumbrance
affecting any of the Broadcast Assets except for such liens as will be released
and discharged on or prior to the Closing Date and for Permitted Encumbrances;
(iii) Sell, assign, lease or otherwise transfer or
dispose of any of the Broadcast Assets, except in the normal and usual course of
business or as permitted in Section 14(q) above; or
(iv) Cancel, modify, amend, or in any way impair any
of the contracts or other agreements which are to be assumed by Buyer except in
the normal and usual course of business.
(bb) Additional Agreements. Subject to the terms and
conditions herein provided, Sellers agree to use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing any
further action is reasonably necessary to carry out the purposes of this
Agreement, Sellers shall take such action so long as such will not involve
additional costs (except as may be required under the indemnification provisions
of this Agreement).
(cc) Join in Execution of Documents. Sellers will join with
Buyer, at such time as all conditions precedent to the transactions contemplated
by this Agreement have been fulfilled, in executing and delivering all documents
which may be necessary or appropriate to effect the transactions contemplated by
this Agreement.
(dd) Full Disclosure. No representation or warranty made by
Sellers contained in this Agreement nor any certificate, document or other
instrument furnished or to be furnished by Sellers pursuant hereto contains or
will contain any untrue statement of a material fact, or omits or shall omit to
state any material fact required to make any statement contained herein or
therein not misleading. Sellers are not aware of any impending or
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contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
For purposes of this Agreement, "Seller's knowledge" means the
knowledge of Xxxxxxx Xxxxxxxx (President of Sellers) or Xxxx Xxxxxx (the chief
engineer for Sellers) after due inquiry of the employees, representatives and
agents of Sellers who would have or be expected to have knowledge of the matter,
and with respect to the condition of the Stations, Broadcast Assets, records or
other object, after they have inspected it.
COVENANTS, REPRESENTATIONS
AND WARRANTIES OF BUYER
15. Covenants, Representations and Warranties of Buyer. Buyer makes the
following representations, warranties, and covenants:
(a) Corporate Standing and Authority.
(i) Buyer is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware; on the Closing Date will be qualified to do business in the State of
Arizona; and has all power and authority to enter into this Agreement, and to
carry out the transactions contemplated hereby.
(ii) This Agreement, all other documents referred to
herein to be signed by Buyer, and the transactions contemplated hereby have been
duly authorized and approved by the members of Buyer, and copies of all
proceedings of Buyer relating to such authorization and approval, certified by
its managers (or directors) have been delivered to Sellers.
(iii) This Agreement constitutes a valid and binding
obligation of Buyer, enforceable in accordance with the terms, subject to
bankruptcy laws, other federal and state laws affecting creditors' rights
generally and availability of equitable remedies.
(b) Litigation. There is no litigation, action, suit,
investigation or proceeding pending, or to the best of Buyer's knowledge,
threatened, against Buyer which may give rise to any claim against any of the
assets to be conveyed or upon Buyer's ability to perform in accordance with the
terms of this Agreement, or which might result in a material monetary forfeiture
or in any material adverse effect upon the business or assets of Buyer or the
Stations.
(c) No Conflict. The execution, delivery and performance by
the Buyer of this Agreement and the consummation of the transactions
contemplated hereby by the Buyer will not (i) violate, conflict with or result
in the breach of any provision of the Operating Agreement of Buyer; (ii) violate
any order, writ, judgment, injunction, award or decree of any court, arbitrator
or governmental or regulatory body against, or binding upon, Buyer or upon the
assets of Buyer which violation could give rise to a valid claim for injunction
or other equitable relief or for damages; and (iii) subject to obtaining the
approvals, consents and
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permits or making the filings referred to in this Agreement, (A) violate any
statute, law or regulation of any jurisdiction as such statute, law or
regulation relates to the Stations or to the assets of Buyer, which violation
could have a material adverse effect on the ability of Buyer to perform its
obligations hereunder, or (B) require the consent of any third party.
(d) Additional Agreements. Subject to the terms and conditions
herein provided, Buyer agrees to use all reasonable efforts to take, or cause to
be taken, all action and to do, or cause to be done, all things necessary,
proper or advisable to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing any
further action is reasonably necessary to carry out the purposes of this
Agreement, Buyer shall take such action so long as such will not involve
additional costs (except as may be required under the indemnification provisions
of this Agreement).
(e) Join in Execution of Documents. Buyer will join with
Sellers, at such time as all conditions precedent to the transactions
contemplated by this Agreement have been fulfilled, in executing and delivering
all documents which may be necessary or appropriate to effect the transactions
contemplated by this Agreement.
(f) Consents. Except for the approvals required of the
Commission, there are no material authorizations, consents or approvals of, or
filings with, governmental regulatory authorities required by Buyer in
connection with the execution or delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(g) Qualifications. To the best knowledge of Buyer, there are
no facts which would, under present law (including the Communications Act of
1934, and present rules, regulations and policies of the Commission), disqualify
Buyer from acquiring the Licenses or from owning and operating the Stations.
Buyer will not take, or fail to take, any action which action Buyer knows or
reasonably expects would cause such disqualification. Buyer has, and will
continue to have to the Closing, funds committed and readily available to it
sufficient to pay the Purchase Price at the Closing, as evidenced by the
documentation set forth in Schedule O.
(h) Full Disclosure. No representation or warranty made by
Buyer contained in this Agreement nor any certificate, document or other
instrument furnished or to be furnished by Buyer pursuant hereto contains or
will contain any untrue statement of a material fact, or omits or shall omit to
state any material fact required to make any statement contained herein or
therein not misleading. Buyer is not aware of any impending or contemplated
event or occurrence that would cause any of the foregoing representations not to
be true and complete on the date of such event or occurrence as if made on that
date.
OTHER
16. (a) Title Insurance.
Not less than five (5) days prior to the Closing, Sellers, at their
expense, shall provide to Buyer a title insurance commitment, issued by a title
insurance company reasonably
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satisfactory to Buyer, agreeing to issue to Buyer a standard form owner's policy
of title insurance with respect to all Owned Real Property, together with a copy
of each document to which reference is made in such commitment. Such policy
shall be in the form of an ALTA Owner's Policy (10-17-92 or more current
version) with standard coverage and in the full amount of that portion of the
Purchase Price allocated to the Owned Real Property insuring good and marketable
title thereto expressly including all easements and other appurtenances. Such
policy shall insure title in full accordance with the representations and
warranties set forth herein and shall be subject only to such conditions and
exceptions as shall be contained in ALTA Loan Policy No. 45032281-M referred to
in Schedule E, and shall contain such endorsements as Buyer shall reasonably
request (including, but not limited to, an endorsement over rights of creditors,
if requested by Buyer or Buyer's lender).
(b) Surveys.
Not less than five (5) days prior to the Closing, Sellers, at their
expense, shall provide to Buyer a survey of the Owned Real Property, and, if
obtainable without undue difficulty or expense, a survey of the KFLG-AM/FM
leased studio property referenced in Schedule F, prepared in accordance with
ALTA/ASCM standards, each dated no more than ninety (90) days prior to the
Closing and each detailing the legal description, the perimeter boundaries, all
improvements located thereon, all easements and encroachments affecting each
such parcel of Owned or Leased Real Property and such other matters as may be
reasonably requested by Buyer or the title insurance companies, each containing
a surveyor certificate reasonably acceptable to Buyer and the title insurance
companies, and each prepared by a registered land surveyor satisfactory to
Buyer.
(c) Environmental Audits.
Buyer, at its expense, will promptly retain a firm engaged in the
regular business of environmental engineering to conduct such environmental
audits of Sellers' operations and the real estate occupied by Sellers as Buyer
in its discretion shall consider necessary or appropriate.
(d) Bulk Sales Law.
The parties do not believe that any bulk sales or fraudulent conveyance
statute applies to the transactions contemplated by this Agreement. Buyer
therefore waives compliance by Sellers with the requirements of any such
statutes, and Sellers agree to indemnify and hold Buyer harmless against any
claim made against Buyer by any creditor of either Seller as a result of a
failure to comply with any such statute.
(e) Use of Call Letters and Company Name.
Following the Closing, neither Seller nor any Affiliate of Sellers,
without the prior written consent of Buyer, will make any use of the call
letters "KAAA (AM)", "KZZZ (FM)", "KFLG (AM)" or "KFLG (FM)" (or any name
confusingly similar thereto), except as
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may be necessary for Sellers to pay its liabilities, prepare tax returns and
other reports, and to otherwise wind up and conclude its business pertaining to
the Stations.
INDEMNIFICATION
17. Indemnification by Buyer and Sellers.
(a) Buyer does not assume and shall not be obligated to pay
any liabilities of Sellers under the terms of this Agreement or otherwise and
shall not be obligated to perform any obligations of Sellers of any kind or
manner except for contracts expressly assigned to and assumed by Buyer hereunder
and, with respect to such contracts, only such obligations which arise
subsequent to the Closing hereunder or as is herein provided.
(b) Sellers and their shareholder hereby agree to jointly and
severely indemnify and hold Buyer, its affiliates, successors and assigns,
harmless from and against:
(i) Any and all claims, liabilities and obligations
of any kind or nature, contingent or otherwise, arising from or related to the
ownership or operation of the Stations prior to the Closing Date hereunder
including, but not limited to, any and all claims, liabilities and obligations
arising or required to be performed prior to the Closing hereunder under any
lease, contract or agreement assumed by Buyer hereunder, except as otherwise
provided herein;
(ii) Any and all damages or deficiency resulting from
any misrepresentation, breach of warranty, or nonfulfillment of any covenant of
Sellers under this Agreement, or from any misrepresentation in or omission from
any certificate or other instrument furnished to Buyer pursuant to this
Agreement, subject, however, to a maximum liability for all such claims in the
aggregate of $5,400,000; and
(iii) Any and all actions, suits, proceedings,
damages, assessments, judgments, costs and expenses, including reasonable
attorneys' fees incurred by Buyer or its Affiliates as a result of Sellers'
failure or refusal to defend or satisfy any claim incident to the foregoing
provisions, or failure otherwise to comply with the foregoing provisions.
(c) Sellers and their shareholder shall jointly and severally
indemnify Buyer, its Affiliates, successors and assigns, against any claims by
creditors of Sellers (including any taxing authority) under the provisions of
any applicable Bulk Sales Law.
(d) Sellers and their shareholder shall jointly and severally
indemnify Buyer, its Affiliates, successors and assigns, against any claims by
employees of the Stations for commissions earned prior to the Closing Date.
(e) If any claim of liability shall be asserted against Buyer,
its Affiliates, successors and/or assigns, which would give rise to a claim by
Buyer, its Affiliates, successors and/or assigns, against Sellers or their
shareholder for indemnification under the provisions of
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this Section 16, Buyer shall promptly notify Sellers in writing of the same and
Sellers shall be entitled at their own expense to compromise or defend any such
claim.
(f) Buyer hereby agrees to indemnify and hold Sellers and
their Affiliates, successors and assigns harmless from and against:
(i) Any and all claims, liabilities and obligations
of any kind or nature, contingent or otherwise, arising from or relating to the
ownership or operation of the Stations on and after the Closing Date hereunder
including, but not limited to, any and all claims, liabilities and obligations
assumed or required to be assumed by Buyer under this Agreement or arising or
required to be performed subsequent to the Closing hereunder;
(ii) Any and all damages or deficiency resulting from
any misrepresentation, breach of warranty, or nonfulfillment of any covenant of
Buyer under this Agreement, or from any misrepresentation in or omission from
any certificate or other instrument furnished to Sellers pursuant to this
Agreement; and
(iii) Any and all claims, actions, suits,
proceedings, damages, assessments, judgments, costs and expenses, including
reasonable attorneys' fees, incurred by Sellers or their Affiliates as the
result of Buyer's failure or refusal to defend or satisfy any claim incident to
any of the foregoing provisions, or failure otherwise to comply with the
foregoing provisions.
(g) If any claim or liability shall be asserted against
Sellers or their Affiliates which would give rise to a claim by Sellers or their
Affiliates against Buyer for indemnification under the provisions of this
Section 16, Sellers shall promptly notify Buyer of the same, and Buyer shall be
entitled at its own expense to compromise or defend any such claim.
(h) The indemnification provided for in subsections (b)(ii)
and (f)(ii) above shall apply only in the event the claim for indemnification
arises and notice of the claim is given within eighteen (18) months from the
Closing Date, except for matters of title or taxes for which there shall be no
limitation except such as is provided by law. No indemnified party shall be
entitled to assert a claim for indemnification under subsections (b)(ii)and
(f)(ii) unless and to the extent that the aggregate damages for all such claims
exceeds $75,000.00; provided, however, that in such event, the Indemnified Party
shall then be entitled to indemnification in full. Each party's exclusive
monetary remedy for breach of representation, warranty or covenant shall be its
rights to seek indemnification hereunder.
PRORATION
18. Proration. Except as previously prorated pursuant to the Time
Brokerage Agreement, all income and expenses arising from the operation of the
Stations including, but not limited to, state and local taxes (excluding income
taxes), upon the Broadcast Assets, real estate taxes and assessments, license
fees, frequency discounts, contractual and other obligations, rents, deposits,
prepaid items such as prepaid rent and insurance and prepayments for advertising
and broadcast time, utility charges, transferable license, permit and
registration
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fees (including, without limitation, ASCAP, BMI and SESAC), the Commission's
Annual License Fee, if any, amounts of any barter balances as provided in
Section 3(b) (to the extent such Section is applicable) and all other items
normally adjusted in connection with similar transactions shall be prorated and
accounted for and paid insofar as practicable as between Sellers and Buyer at
the Closing, in accordance with generally-accepted accounting principles as of
11:59 PM on the date immediately preceding the Closing Date. Within sixty (60)
days following the Closing Date, Sellers shall furnish to Buyer their good faith
computation of any proration items not determinable as of the Closing Date.
Within 5 days thereafter, a final adjustment payment shall be made by Buyer or
Sellers to the other, as the case may be.
RISK OF LOSS
19. Risk of Loss. The risk of loss, damage or destruction from any
cause to the Broadcast Assets shall be borne by RBK at all times between the
date of this Agreement and the Closing Date. In the event of any material loss,
damage or destruction to the Broadcast Assets between the date of this Agreement
and the Closing Date, RBK at its option may, but it shall be under no obligation
to, repair, replace or restore any such Broadcast Asset prior to the Closing
Date to substantially the same condition existing prior to such damage or
destruction. In the event of substantial damage to any of the Broadcast Assets
or in the event of the occurrence of any damage or event which prevents
broadcast transmission of the Stations in the normal and usual manner and in
accordance with the Licenses, Sellers shall promptly notify Buyer of the same in
writing, specifying with particularity the loss or damage incurred, the cause
thereof if known or reasonably ascertainable, and the extent to which
restoration, replacement and repair of the property lost or destroyed will be
reimbursed under the insurance coverage. In the event the loss, damage or
destruction has not been restored, replaced or repaired by the Closing Date, the
Closing Date shall be postponed to the extent necessary to allow RBK at least
ninety (90) days from the date of loss, damage or destruction to complete the
repair, replacement or restoration. In the event the repair, replacement or
restoration has not been completed after allowing for such minimum period for
such to be accomplished, then Buyer shall have the option to:
(a) Terminate this Agreement without any further obligation
hereunder; or
(b) Elect to consummate the Closing and accept the property in
its then condition, in which event RBK shall assign to Buyer all proceeds of
insurance theretofore received and due and owing covering the property involved
to the extent not previously applied to restore such property.
In the event the Closing Date is postponed, Sellers and Buyer will
cooperate to extend the time during which this Agreement must be closed as
specified in the Commission's Order.
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CONDITIONS PRECEDENT TO BUYER'S
OBLIGATION TO CLOSE
20. Conditions Precedent to Buyer's Obligations. If at the Closing Date
the following conditions are satisfied or waived, Buyer, subject to the
provisions of Section 19 hereof, shall be obligated to purchase the Broadcast
Assets in accordance with the terms and conditions of this Agreement:
(a) Representations, Warranties and Covenants. The
representations and warranties of Sellers contained herein or in any Schedule or
in any list, certificate or document delivered pursuant to the provisions hereof
shall be true in all material respects as of the date of this Agreement and as
of and at the Closing Date as though made on such Closing Date except for (i)
changes to schedules resulting from the modification thereof by Sellers to
reflect changes from the date hereof to the Closing Date for items that do not
result from any breach by Sellers hereunder, (ii) breaches which could not
reasonably be expected to have a material adverse effect on the Stations or the
Broadcast Assets, and (iii) changes caused by Buyer's time brokering of the
Stations under the Time Brokerage Agreement. Sellers shall have performed and
complied with all obligations and covenants required by this Agreement and the
Time Brokerage Agreement to be duly performed or complied with by Sellers on or
prior to the Closing Date (except for such failures to comply which could not
reasonably be expected to have a material adverse effect on the Stations or the
Broadcast Assets). Sellers shall have delivered to Buyer certificates dated the
Closing Date and signed by an officer of Sellers attesting to the above.
(b) Delivery of Closing Documents. Sellers shall have
delivered to Buyer the Closing Documents described hereinafter in Section 22 of
this Agreement.
(c) Licenses. RLK shall be the holder of the Licenses and such
Licenses shall be free and clear of material adverse conditions not set forth on
the Licenses on the date of this Agreement, competing applications, petitions to
deny, material complaints, appeals or any restrictions as might limit the
operation of the Stations as presently authorized.
(d) Consents. On the Closing Date, each person, association,
corporation or other entity, the consent or approval of which to the purchase
and acquisition of the Broadcast Assets or any material part thereof from
Sellers as herein provided is then required shall have duly consented or
approved such acquisition of Broadcast Assets; provided, that in connection with
the contract consents listed on Schedule B, only those consents marked with an
asterisk need be obtained as a condition to Buyer's obligation to purchase the
Broadcast Assets.
(e) Final Order. The Commission's Order shall have been issued
with no conditions materially adverse to Buyer and shall have become a Final
Order.
(f) No Adverse Conditions. From the date of this Agreement
through the Closing, there shall have been no material loss or damage (excluding
such as was caused by the acts of Buyer) to the tangible properties or assets
forming a part of the Broadcast Assets (whether or not covered by insurance)
which materially and adversely affects or impairs the
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ability of the Stations to conduct their business as it is being conducted on
the date hereof and which have not been either (i) repaired, replaced or
restored by the Sellers, or (ii) with respect to which the Buyer has not taken
the action described in Section 19(b).
(g) Adverse Proceedings. As of the Closing Date, no suit,
action, claim or governmental proceeding or investigation shall be pending or
shall have been instituted, taken, presented or threatened against Sellers which
results or reasonably may result in a material adverse effect upon, or
substantial disruption of the operations of the Stations, or make unlawful the
carrying out of this Agreement, cause it to be rescinded or impose a lien on, or
require Buyer to divest itself of, any of the assets to be acquired by it
hereunder.
(h) Time Brokerage Agreement Compliance. From the date hereof
through the Closing Date, the Time Brokerage Agreement shall not have been
terminated by Buyer as permitted by the Time Brokerage Agreement as a result of
RBK's material noncompliance with its obligations under the Time Brokerage
Agreement.
CONDITIONS PRECEDENT TO SELLERS'
OBLIGATION TO CLOSE
21. Conditions Precedent to Sellers' Obligations. If at the Closing
Date the following conditions are satisfied or waived, Sellers shall be
obligated to sell the Broadcast Assets in accordance with the terms and
conditions of this Agreement:
(a) Representations, Warranties and Covenants. The
representations and warranties of Buyer contained herein or in any list,
certificate or document delivered pursuant to the provisions hereof shall be
true in all material respects as of and at the Closing Date as though made on
such date except for changes permitted by this Agreement. Buyer shall have
performed and complied with in all material respects all obligations and
covenants required by this Agreement to be performed or complied with by Buyer
on or prior to the Closing Date. Buyer shall have delivered to Sellers a
certificate dated the Closing Date and signed by an officer of Buyer attesting
to the above.
(b) Purchase Price. Payment of the Purchase Price on the
Closing Date shall have been paid in accordance with the terms of this
Agreement.
(c) Delivery of Closing Documents. Buyer shall have delivered
to Sellers the Closing Documents described hereafter in Section 23 of this
Agreement.
(d) Commission's Order. The Commission's Order shall have been
issued with no conditions materially adverse to Sellers.
(e) Adverse Proceedings. As of the Closing Date, no suit,
action, claim or governmental proceeding or investigation shall be pending or
shall have been instituted, taken, presented or threatened against Buyer which
reasonably would make unlawful the carrying out of this Agreement, cause it to
be enjoined or rescinded, or impose damages against Sellers if the relief sought
were granted.
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(f) Consents. On the Closing Date, each person, association,
corporation or other entity, the consent or approval of which to the sale of the
Broadcast Assets or any material part thereof by Sellers as herein provided is
then required shall have duly consented or approved such sale of Broadcast
Assets; provided, that in connection with the contract consents listed on
Schedule B, only those consents marked with an asterisk need be obtained as a
condition to Sellers' obligation to sell the Broadcast Assets.
CLOSING DOCUMENTS
22. Closing Documents to be Delivered by Sellers. On the Closing Date,
Sellers shall deliver to Buyer:
(a) A Deed, Bills of Sale and other instruments of conveyance
in form satisfactory to Buyer, dated the Closing Date, executed by RBK, in such
form and reasonable detail as Buyer may request, conveying to Buyer good title
to the assets set forth in Schedule C and to the real property described on
Schedule E in accordance with the terms of this Agreement.
(b) Assignment instruments in form satisfactory to Buyer,
dated the Closing Date, appropriately executed by RLK, assigning the Licenses.
(c) Certificates signed by an officer of Sellers to the effect
set forth in Section 20(a) hereof.
(d) Certified resolutions of the shareholder and Board of
Directors of Sellers approving the execution and delivery of this Agreement and
authorizing the consummation of the transactions contemplated hereby.
(e) Such other assignments, documents and instruments as
counsel for Buyer may reasonably require to evidence ownership of all property
rights hereunder sold, wherever located.
(f) Possession of all Broadcast Assets.
(g) All consents required of any other party to any contract
marked by an asterisk on Schedule B or whose consent is required pursuant to
subsection 14(m) hereof.
(h) A Good Standing Certificate dated within fifteen (15) days
of the Closing Date issued by the Secretaries of State of the States of Delaware
and Arizona.
(i) An Assignment and Assumption Agreement executed by RBK in
the form of Exhibit C effectuating the assignment and assumption of the
liabilities to be assumed by Buyer hereunder (the "Assignment and Assumption
Agreement").
(j) A written opinion of Sellers' counsel in the form of
Exhibit D, dated as of the Closing Date.
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(k) A written opinion of Sellers' Commission counsel in the
form of Exhibit E, dated as of the Closing Date.
(l) Surveys and Title Insurance as required pursuant to
Section 16.
23. Closing Documents to be Delivered by Buyer. On the Closing Date,
Buyer shall deliver to Sellers:
(a) Electronic funds transfers of good funds totaling the
Purchase Price, including the Escrow Deposit and less or plus any adjustments
thereto by virtue of Section 18.
(b) A certificate signed by an officer of Buyer to the effect
set forth in Section 21 hereof.
(c) A certified copy of the resolution of Buyer's members
authorizing the execution, delivery and performance of this Agreement and all
instruments referred to herein to which Buyer is a party.
(d) Good Standing Certificates dated within fifteen (15) days
of the Closing issued by the Secretaries of State of the States of Delaware and
Arizona.
(e) The Assignment and Assumption Agreement executed by Buyer.
(f) A written opinion of Buyer's counsel in the form of
Exhibit F, dated as of the Closing Date.
MISCELLANEOUS PROVISIONS
24. Confidentiality. Subject to the requirements of applicable law,
Buyer and Sellers shall keep confidential all information obtained by them with
respect to the other parties hereto in connection with this Agreement and the
negotiations preceding this Agreement, and will use such information solely in
connection with the transactions contemplated by this Agreement, and if the
transactions contemplated hereby are not consummated for any reason, each shall
return to the other party hereto, without retaining a copy thereof, any
schedules, documents or other written information obtained from such other party
in connection with this Agreement and the transactions contemplated hereby.
Notwithstanding the foregoing, no party shall be required to keep confidential
or return any information which: (a) is known or available through other lawful
sources, not bound by a confidentiality agreement with the disclosing party; (b)
is or becomes publicly known through no fault of the receiving party or its
agents; (c) is required to be disclosed pursuant to an order or request of a
judicial or governmental authority (provided the disclosing party is given
reasonable prior notice of the order or request and the purpose of the
disclosure); or (d) is developed by the receiving party independently of the
disclosure by the disclosing party. Notwithstanding anything to the contrary
herein, any party may in accordance with its legal obligations, including but
not limited to filings permitted or required by the Securities Act of 1933 and
the Securities and Exchange Act of 1934, the NASDAQ National Market and other
similar regulatory bodies,
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make such press releases and other public statements and announcements as it
deems necessary and appropriate in connection with this Agreement and the
transactions contemplated hereby; provided, however, that prior to making any
such unilateral press release or announcement, such party shall first
communicate the same in writing to the other.
25. Consents to Assignment. To the extent that any contract identified
in the Schedules is not capable of being sold, assigned, transferred, delivered
or subleased without the waiver or consent of any third person (including a
government or governmental unit), or if such sale, assignment, transfer,
delivery or sublease or attempted sale, assignment, transfer, delivery or
sublease would constitute a breach thereof or a violation of any law or
regulation, this Agreement and any assignment executed pursuant hereto shall not
constitute a sale, assignment, transfer, delivery or sublease or an attempted
sale, assignment, offer, delivery or sublease thereof. Subject to the provisions
of Section 20(d), in those cases where consents, assignments, releases and/or
waivers have not been obtained at or prior to the Closing relating to the
assignment to Buyer of the contracts, this Agreement and any assignment executed
pursuant hereto, to the extent permitted by law, shall constitute an equitable
assignment by RBK to Buyer of all of RBK's rights, benefits, title and interest
in and to the contracts, and where necessary or appropriate, Buyer shall be
deemed to be RBK's agent for the purpose of completing, fulfilling and
discharging all of RBK's rights and liabilities arising after the Closing Date
under such contracts. RBK shall use its reasonable best efforts to provide Buyer
with the financial and business benefits of such contracts (including, without
limitation, permitting Buyer to enforce any rights of RBK arising under such
contracts), and Buyer shall, to the extent Buyer is provided with the benefits
of such contracts, assume, perform and in due course pay and discharge all
debts, obligations and liabilities of RBK under such contracts to the extent
that Buyer was to assume those obligations pursuant to the terms hereof.
26. Time Brokerage Agreement. Simultaneously with the execution hereof,
Buyer and RBK are entering into a Time Brokerage Agreement, in the form of
Exhibit B hereto (the "Time Brokerage Agreement"), pursuant to which RBK has
agreed to make available to Buyer the broadcasting transmission facilities of
the Stations and/or cause to be broadcast on the Stations Buyer's programming
from the Commencement Date (as defined in the Time Brokerage Agreement) and
during the term thereof. An Event of Default by either party under the Time
Brokerage Agreement shall constitute a material default under this Agreement and
insofar as the cure period specified in the Time Brokerage Agreement has expired
with respect to the default, no further cure period shall be afforded under the
provisions hereof.
27. Employee Matters. Buyer shall be under no obligation to offer
employment to any of Sellers' employees. RBK or any of its Affiliates, may
terminate or retain any of RBK's employees. RBK shall be responsible for the
payment of all compensation and accrued employee benefits payable to all of its
employees. RBK acknowledges and agrees that it, and not Buyer, is and shall be
solely responsible for any and all insurance, supplemental pension, deferred
compensation, retirement and any other benefits, and related costs, premiums and
claims, due, to become due, committed or otherwise promised to any person who is
a retiree, former employee, or current employee of RBK, relating to the period
of employment by RBK.
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28. Remedies on Default.
(a) In the event of a material breach by Buyer prior to
Closing of any term or condition of this Agreement or of any warranty or
representation contained herein, Sellers, provided they are not otherwise in
default hereunder, may terminate this Agreement and receive as their sole remedy
and as liquidated damages the Escrow Deposit. The rights conferred by the above
sentence may not be exercised unless Sellers have given Buyer thirty (30) days
written notice of the specific nature of the breach and Buyer has failed to
correct it within that period; provided, however, that Sellers shall not be
required to give Buyer said notice if Sellers are exercising their rights as a
result of Buyer's failure to close the transaction contemplated hereby.
(b) In the event of a material breach by Sellers prior to
Closing of any term or condition of this Agreement or of any warranty or
representation contained herein, Buyer, provided that it is not otherwise in
default hereunder, may, at its option, terminate this Agreement and recover
damages from Sellers and/or pursue the right to specific performance of this
Agreement, which Sellers acknowledge is an appropriate remedy because damages
recoverable hereunder may be inadequate. The rights conferred by the above
sentence may not be exercised unless Buyer has given Sellers thirty (30) days'
written notice of the specific nature of the breach and Sellers have failed to
correct it within that period; provided, however, that Buyer shall not be
required to give Sellers said notice if Buyer is exercising its rights as a
result of Sellers' failure to close the transaction contemplated hereby.
29. Brokerage. The parties agree that there is no brokerage commission
or finder's fee payable in connection herewith, with the exception of a
commission payable to SMG, which commission shall be paid by Sellers.
30. Survival of Representations and Warranties. The representations,
warranties, covenants, and agreements herein contained shall be deemed and
construed to be continuing representations, warranties, covenants, and
agreements which shall survive the consummation of this transaction and any
investigation at any time made by or on behalf of Buyer for the period provided
in Section 17(h); and neither the acceptance of payments due nor the acceptance
of delivery of property hereunder shall constitute a waiver of any covenant,
representation, or warranty herein contained. Buyer and Sellers shall remain
liable to each other in accordance with the terms and provisions of this
Agreement for any damage resulting from any breach, failure, nonperformance or
non-fulfillment of any of their respective covenants, representations or
warranties herein notwithstanding that the injured party may elect to close this
transaction with such breach outstanding. No waiver or forbearance by either
party in any instance shall constitute or be deemed a waiver or forbearance in
any other instance. Any party hereto may waive the conditions to its performance
hereunder other than those pertaining to regulatory approval.
31. Entire Agreement. This Agreement (including the Schedules and
Exhibits) and the collateral agreements executed in connection with consummation
of the transactions contemplated hereby contain the entire agreement between the
parties hereto with respect to the
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purchase and sale of the Broadcast Assets, and supersedes all prior agreements,
written or oral, with respect thereto.
32. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and delivered in person or sent by fax
or certified mail, postage prepaid and properly addressed as follows:
To Sellers: To Buyer:
c/o Regent Communications, Inc. Mag Mile Media, L.L.C
00 Xxxx Xxxxx Xxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxxxx Avenue
Suite 180 Suite 1880
Covington, Kentucky 41011-1683 Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Copy to: Copy to:
(which copies shall not constitute notice hereunder)
Xxxx X. Xxxxxx, Esq. Xxxxxx X. Xxxxxx, Esq.
Struass & Xxxx Xxxxx & Xxxxxxx
2100 PNC Center 000 Xxxxx Xxxxxx Xxxxxx
000 Xxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000
Xxxxxxxxxx, Xxxx 00000 Facsimile (000) 000-0000
Facsimile: (000) 000-0000
All notices and other communication required or permitted under this Agreement
which are addressed as provided in this paragraph, if delivered personally,
shall be effective upon delivery; if delivered by fax, shall be effective upon
receipt; and if delivered by mail, shall be effective upon deposit in the United
States mail, postage prepaid. Either party may from time to time change its
address for the purpose of notice by a similar notice specifying a new address,
but no such change shall be deemed to have been given until it is actually
received by the party sought to be charged with the contents.
33. Waivers and Amendments; Non-Contractual Remedies; Preservation of
Remedies. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by the Buyer and the Sellers or, in the case of a waiver, by the party
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any such right, power or privilege, nor any
single or partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege. The rights and
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remedies herein provided are cumulative and are not exclusive of any rights or
remedies that any party may otherwise have at law or in equity.
34. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Arizona without regard to the conflict
of law provisions thereof.
35. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors. This
Agreement may be assigned by Buyer without the prior consent of Sellers;
provided, however, no such assignment shall relieve Buyer of its obligations
hereunder.
36. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all, of the parties hereto.
37. Exhibits and Schedules. The Exhibits and Schedules are a part of
this Agreement as if fully set forth herein. All references herein to
paragraphs, sections, Exhibits and Schedules shall be deemed references to such
parts of this Agreement, unless the context shall otherwise require.
38. Headings. The headings in this Agreement are for reference only,
and shall not affect the interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
BUYER: SELLERS:
MAG MILE MEDIA, L.L.C. REGENT BROADCASTING OF KINGMAN, INC.
By: /s/ By: /s/
Title: /s/ Title: /s/
REGENT LICENSEE OF KINGMAN, INC.
By: /s/
Title: /s/
SHAREHOLDER:
REGENT COMMUNICATIONS, INC., solely for
purposes of being bound by the provisions of
Section 17 regarding indemnification
By: /s/
Title: /s/
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(i) LIST OF SCHEDULES
Schedule A Licenses
Schedule B Contracts
Schedule C Tangible Property
Schedule C-1 Leased Personal Property
Schedule D Copyrights, Logos, Jingles, Service Marks,
Trademarks and Other Intangible Rights
Schedule E Owned Real Property
Schedule F Leased Real Property
Schedule G Allocation of Purchase Price
Schedule H Financials
Schedule I Accounts Receivable
Schedule J Non-Compliance with Laws
Schedule K Environmental Matters
Schedule L Restrictions on Transferability
Schedule M Insurance
Schedule N Employees
Schedule O Sources of Funds
(ii) LIST OF EXHIBITS
Exhibit A Deposit Escrow Agreement
Exhibit B Time Brokerage Agreement
Exhibit C Assignment and Assumption Agreement
Exhibit D Form of Opinion-Sellers' Counsel
33
Exhibit E Form of Opinion-Sellers' Commission Counsel
Exhibit F Form of Opinion-Buyer's Counsel
