___________________________________________________________
ASSET PURCHASE AGREEMENT
dated as of March 1, 1996
by and between
ATLANTIC CITY BROADCASTING CORP.
(Seller)
and
EQUITY COMMUNICATIONS, L.P.
(Buyer)
___________________________________________________________
TABLE OF CONTENTS
ARTICLE I PURCHASE AND SALE OF ASSETS
1.1 Transfer of Assets 1
1.2 Excluded Assets 3
1.3 Liabilities to be Assumed 4
1.4 Purchase Price 4
1.5 Allocation of Purchase Price 4
1.6 Escrow Deposit 4
ARTICLE II CLOSING AND TERMINATION
2.1 Closing 5
2.2 Transactions at the Closing 5
2.3 Proration of Expenses 7
2.4 Termination 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Due Incorporation 10
3.2 Authority; No Conflict 10
3.3 Government Authorizations 10
3.4 Compliance with Regulations 11
3.5 Personal Property 11
3.6 Real Property 12
3.7 Real Estate Contracts 12
3.8 Consents 13
3.9 Contracts 13
3.10 Environmental 13
3.11 Intellectual Property 14
3.12 Financial Statements 15
3.13 Personnel Information; Labor Contracts 15
3.14 Employee Benefit Plans 15
3.15 Litigation 15
3.16 Compliance with Laws 16
3.17 Insurance 16
3.18 Instruments of Conveyance; Good Title 16
3.19 Absence of Certain Changes 16
3.20 Insolvency Proceedings 17
3.21 Location of Assets 18
3.22 Citizenship 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Due Incorporation 19
4.2 Authority; No Conflict 19
4.3 Consents 19
4.4 Litigation 19
4.5 Compliance with Laws 20
4.6 Qualification 20
4.7 Financing 20
ARTICLE V COVENANTS OF SELLER
5.1 Continued Operation of Station 20
5.2 Financial Obligations 20
5.3 Access 21
5.4 Maintenance of Assets 21
5.5 Notification of Developments 21
5.6 Updated Financial Statements 21
5.7 Encumbrances 21
5.8 Assignment of Assets 21
5.9 Commission Licenses and Authorizations 21
5.10 Technical Equipment 22
5.11 Employees 22
5.12 Sale of Broadcast Time 22
5.13 Contracts 22
5.14 Taxes 22
5.15 Commission Action 22
5.16 Insurance 23
5.17 Negotiations with Third Parties 23
5.18 Third Party Consents 23
5.19 Normal Operation 23
ARTICLE VI JOINT COVENANTS OF BUYER AND SELLER
6.1 Assignment Application 23
6.2 Performance 23
6.3 Conditions 23
6.4 Confidentiality 24
6.5 Cooperation 24
6.6 Consents to Assignment 24
6.7 Bulk Sales Laws 25
6.8 Employee Matters 25
ARTICLE VII CONDITIONS TO OBLIGATIONS OF BUYER
7.1 Commission Approvals 25
7.2 Performance 26
7.3 Representations and Warranties 26
7.4 Consents 26
7.5 Opinions of Counsel 26
7.6 Covenant Not to Compete 26
7.7 Release of Indebtedness 26
7.8 Environmental Audit 26
7.9 Occupancy Certificate 27
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF SELLER
8.1 Performance 28
8.2 Representations and Warranties 28
8.3 Government Approvals 28
8.4 Purchase Price 28
8.5 Closing Certificate 28
ARTICLE IX INDEMNIFICATION
9.1 Indemnification by Seller 28
9.2 Indemnification by Buyer 29
ARTICLE X MISCELLANEOUS
10.1 Damage and Failure of Transmissions 29
10.2 Assignment 30
10.3 Survival of Representations 31
10.4 Brokerage 31
10.5 Expenses of the Parties 31
10.6 Entire Agreement 31
10.7 Headings 31
10.8 Governing Law 31
10.9 Counterparts 31
10.10 Notices 32
10.11 Specific Performance 33
10.12 Arbitration 33
10.13 Consent to Jurisdiction 34
10.14 Further Assurances 34
10.15 Amendments 34
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into this
first day of March, 1996 by and between ATLANTIC CITY BROADCASTING CORP., a
corporation formed under the laws of the State of Delaware ("Seller"), and
EQUITY COMMUNICATIONS, L.P., a limited partnership formed under the laws of the
State of Delaware ("Buyer").
R E C I T A L S
WHEREAS, Seller owns and operates and has been duly licensed by the
Federal Communications Commission (the "FCC" or the "Commission") to operate
radio station WAYV- FM, Atlantic City, New Jersey on 95.1 MHz (the "Station");
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, the assets used or useful in connection with the operation of the
Station, and Seller and Buyer further desire that Seller assign to Buyer the
licenses and other authorizations issued to Seller by the Commission for the
purpose of operating the Station; and
WHEREAS, concurrently herewith, the parties are entering into a Time
Brokerage Agreement (the "Time Brokerage Agreement"), providing for the sale of
substantially all of the broadcast time of the Station to Buyer, subject to the
rules and policies of the FCC.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Transfer of Assets. Seller agrees to assign, transfer, convey and
deliver to Buyer and Buyer agrees to acquire, accept and receive from Seller, on
the Closing Date, all of Seller's right, title and interest in and to all of the
tangible and intangible assets and rights of every kind and nature, real,
personal and mixed, now or hereafter owned or held by Seller and used or useful
in the business and operation of the Station, wherever located, other than those
assets described in Section 1.2 below, free and clear of any and all claims,
liabilities, liens, encumbrances or conditions, including without limitation the
following (collectively, the "Station Assets"):
(a) Licenses and Authorizations. All licenses, permits and other
authorizations issued by the FCC or any other state or federal government or
agency thereof pertaining to the Station, including, without limitation, those
licenses, permits or authorizations listed in Section 1.1(a) of the disclosure
schedule delivered by Seller to Buyer and dated of even date herewith (the
"Disclosure Schedule"), together with any renewals, extensions or modifications
thereof and additions thereto made between the date of this Agreement and the
Closing Date (the "Licenses"). The Licenses include the right to use the call
letters of the Station, including but not limited to the call letters WAYV-FM.
(b) Tangible Personal Property. All of the tangible personal property or
fixtures owned by Seller and used or useable in the operation of the Station,
including, without limitation, the property listed in Section 1.1(b) of the
Disclosure Schedule together with all additions, modifications or replacements
thereto made in the ordinary course of business between the date of this
Agreement and the Closing Date, as hereafter defined (the "Personal Property").
(c) Real Estate Contracts. All of the leasehold interests in real
property leased by Seller and used by the Station, including all material
agreements, leases, and contracts of Seller relating to the tower, transmitter,
studio site, and offices of the Station (the "Real Estate Contracts"), as
described in Section 1.1(c) of the Disclosure Schedule. Buyer shall assume, pay
and perform all obligations under such Real Estate Contracts arising after the
Closing Date.
(d) Intellectual Property. All of Seller's right, title and interest in
all trade names, copyrights, trademarks, service marks, slogan, logos, patents,
patent applications or other similar rights relating to or used in the operation
of the Station including, but not limited to, those listed in Section 1.1(d) of
the Disclosure Schedule, together with any necessary additions or modifications
thereto between the date hereof and the Closing Date (the "Intellectual
Property").
(e) Leases and Contracts. All leases, contracts, syndication agreements,
programming agreements, franchises and all other agreements relating to the
business and operation of the Station (other than contracts for the sale of
broadcast time and leases for real property) listed and identified in Section
1.1(e) of the Disclosure Schedule and those leases, contracts, agreements and
franchises described in Section 1.1(h) of this Agreement (the
"Contracts"). Buyer shall assume, pay and perform all obligations under such
Contracts arising after the Closing Date.
(f) Contracts for Sale of Broadcast Time. All contracts for the sale of
broadcast time on the Station that are to be in effect on the Closing Date (the
"Broadcast Agreements"), including any contract for the sale of time pursuant to
which payment is to be received in whole or in part in services, merchandise or
other non-cash considerations ("Trade Agreements"). Broadcast Agreements in
effect as of the date hereof are set forth on Section 1.1(f) of the Disclosure
Schedule. Buyer shall assume, pay and perform all obligations under the
Broadcast Agreements arising after the Closing Date, provided, however, that
Buyer shall be obligated to assume only those Broadcast Agreements and Trade
Agreements that were entered into at the Station's then-prevailing rates and
that have terms consistent with the Station's past practice in the ordinary
course of business.
(g) Operating and Business Records. All files, records, logs, public
file materials, engineering records, program materials and other business
records of Seller pertaining to the operation of the Station, including but not
limited to those required to be maintained and kept under the rules of the
Commission and such other files and records as Buyer shall reasonably require
for the continuing business and operation of the Station. Seller shall have the
right to reasonable access to such business records that Seller delivers to
Buyer under this Section 1.1(g) upon Seller's request for three years after the
Closing Date.
(h) Future Contracts. All leases, contracts, agreements and franchises
entered into between the date hereof and the Closing Date (the "Post-signing
Contracts") in connection with the business and operation of the Station in
accordance with the provisions of Section 5.13.
(i) Inventory and Computer Software. All of Seller's items of inventory
related to the business of the Station, including, without limitation, broadcast
programs,
as well as all computer software used or useable by the Station.
(j) Other Rights and Privileges. Any and all other franchises,
materials, supplies, easements, rights-of-way, licenses, and other rights and
privileges of Seller relating to and used, useable or necessary in the operation
of the Station.
(k) Intangible Property. All of Seller's right, title and interest in
and to the goodwill and other intangible assets used or useful in or arising
from the business of the Station, including but not limited to all customer
lists, trade secrets, and sales, operating and business plans (the "Intangible
Property").
(l) Accounts Receivable. All of Seller's accounts receivable.
(m) Cash Proceeds. All proceeds generated from the sale of any Station
Assets by the Seller between the date hereof and the Closing Date.
1.2 Excluded Assets. There shall be excluded from the sale transaction
described herein the following assets relating to the Station:
(a) Cash and Deposits. Cash-on-hand or in banks (or their equivalents)
as of the date hereof.
(b) Property Consumed. All property of the Station disposed of or
consumed (including ordinary wear and tear) in the ordinary course of business
between the date hereof and the Closing Date in accordance with the terms of
this agreement; provided, however, that any proceeds of such sales shall not
constitute Excluded Property.
(c) Expired Leases, Contracts and Agreements. All contracts described in
Sections 1.1(e), (f) and (h) to the Disclosure Schedule that are terminated or
will have expired prior to the Closing Date, in either case, in the ordinary
course of business.
(d) Pension and Profit-Sharing Plans. All pension and profit-sharing
plans, trusts established thereunder and assets thereof, if any, of Seller.
(e) Other Assets. Those assets, if any, listed in Section 1.2(e) of the
Disclosure Schedule.
1.3 Liabilities to be Assumed. Buyer assumes no liabilities or
obligations of
Seller of any nature whatsoever, contingent or otherwise, except for (a) those
liabilities assumed under the Time Brokerage Agreement, including those
liabilities listed on Schedules 4.1 and 4.1A thereto; and (b) obligations
accruing after the Closing under Real Estate Contracts, Contracts, Broadcasting
Agreements, Trade Agreements and Post-signing Contracts (collectively, the
"Assumed Contracts") assigned to and specifically assumed by Buyer.
1.4 Purchase Price. In consideration of Seller's performance of this
Agreement and the sale, assignment, transfer, conveyance and delivery of the
Station Assets to Buyer free and clear of all liens and encumbrances, Buyer
shall assume the liabilities in Section 1.3 and pay on the Closing Date, by wire
transfer, the sum of Three Million One Hundred Thousand Dollars ($3,100,000.00),
subject to adjustment as provided in Section 2.3 (the "Purchase Price"). Of such
amount, $200,000 shall be paid by wire transfer to such account as Seller shall
designate to Buyer prior to the Closing Date. The balance shall be paid by wire
transfer to such account as Granite Equities, Inc. ("Granite") shall designate
to Buyer prior to the Closing Date.
1.5 Allocation of Purchase Price. Buyer and Seller agree that the
Purchase Price shall be allocated among the Station Assets prior to the Closing
Date and to cooperate in all respects with regard to such allocation. Buyer and
Seller agree to use such allocation in completing and filing Internal Revenue
Service Form 8594 for federal income tax purposes. Buyer and Seller further
agree that they shall not take any position inconsistent with such allocation
upon examination of any return, in any refund claim, in any litigation, or
otherwise. If Buyer and Seller are unable to agree on such allocation, they
shall hire an appraiser to make such allocation, the cost of which appraisal
shall be borne equally by Seller and Buyer.
1.6 Escrow Deposit. As security for Buyer's failure to Close and as an
inducement for Seller to perform its obligations hereunder Buyer shall deposit
within two (2) business days of the date hereof with Media Venture Partners (the
"Escrow Agent") a $200,000
irrevocable letter of credit in substantially the form attached hereto as
Exhibit A issued by Fleet Bank of Massachusetts, N.A. (the "Escrow Deposit"),
which Escrow Deposit shall be held and disbursed by the Escrow Agent pursuant to
the Escrow Agreement of even date herewith as follows: if this Agreement is
terminated pursuant to Section 2.4(a)(iv) by reason of a breach by Buyer and if
all conditions to Buyer's obligations to close shall have been satisfied or
waived, (i) the Escrow Deposit shall be released to Granite, (ii) title to all
of the Station's accounts receivable shall become vested in Seller, pursuant to
Section 4.1 of the Time Brokerage Agreement, and (iii) all severance obligations
(other than severance obligations assumed pursuant to Section 4.1 of the Time
Brokerage Agreement and severance obligations to Xxxx Xxxxxx), accrued expenses
and trade payables relating to the operation of the Station (not to exceed in
the aggregate, the amount of the Station's accounts receivable) shall be assumed
by Seller, which together shall be deemed liquidated damages and shall
constitute Seller's and Granite's sole remedy at law or in equity and Seller and
Granite shall have no other recourse against Buyer or any of its affiliates
under or on account of this Agreement. In all other cases, if this Agreement is
terminated or if the transactions contemplated herein are consummated, then the
Escrow Deposit shall be delivered to the Buyer.
ARTICLE II
CLOSING AND TERMINATION
2.1 Closing. The purchase and sale of the Station Assets contemplated by
this Agreement (the "Closing") shall take place at 10:00 a.m. on a mutually
agreed upon day within five (5) days after the Commission's approval of the
Assignment Application, as defined in Section 6.1 below, becomes a Final Order,
or such other time and at such place as shall be mutually agreed upon by the
parties (the "Closing Date"). For purposes of this Agreement, a "Final Order"
shall mean any action of the Commission which has not been reversed, stayed,
enjoined, set aside, annulled or suspended and with respect to which no requests
are pending for administrative or judicial review, reconsideration, appeal or
stay, and the time for filing any such requests and the time for the Commission
to set aside the action on its own motion shall have expired. Buyer may, at its
sole election, waive the requirement that the Commission's approval of the
Assignment Application shall have become a Final Order.
2.2 Transactions at the Closing.
(a) At the Closing, Seller shall deliver to Buyer the following:
(i) assignments of the Licenses and other pertinent authorizations
transferring the same to the Buyer in customary form and substance;
(ii) the certificates contemplated by Sections 7.2, 7.3 and the
affidavit contemplated by Section 3.22;
(iii) a copy of the resolutions of the board of directors and
stockholders of Seller authorizing the execution, delivery and performance of
this Agreement, the Time Brokerage Agreement and the Escrow Agreement, and the
consummation of the transactions contemplated hereby and thereby, together with
a certificate of the Secretary of Seller, dated as of the Closing Date, that
such resolutions were duly adopted and are in full force and effect;
(iv) a xxxx of sale and all other appropriate documents and instruments
of transfer assigning to Buyer good and marketable title to the Station Assets
free and clear of any security interests, mortgages, liens, pledges,
attachments, conditional sales contracts, claims, charges or encumbrances of any
kind whatsoever;
(v) written consents (including satisfactory estoppel language as to the
absence of defaults and the completeness of documentation) of the respective
lessors, landowners, and any other persons or entities whose consents may be
required to permit Seller to assign or Buyer to assume the liabilities,
contracts, leases, licenses, understandings and
agreements constituting the Assumed Contracts;
(vi) evidence satisfactory to Buyer's counsel that no financing
statements or other liens or encumbrances are outstanding on the Station Assets;
(vii) all files, records, logs, and program materials relating to the
Station and the Station Assets;
(viii) the opinion of general counsel and FCC counsel for Seller, dated
the Closing Date, as described in Section 7.5;
(ix) assignments to Buyer of all the Assumed Contracts (including
assignment of the Real Estate Contracts in recordable form); and
(x) a copy of the lease or memorandum of lease pertaining to the
transmitter site (and all amendments thereto) executed by Seller and the
landlord and duly recorded with the recorder's office in the jurisdiction where
the property is located.
(xi) a Non-Compete Agreement in the form attached hereto as Exhibit B
executed by Xxxxx X. Xxxxxx, individually, and in his capacity as president of
Xxxxxx Communications Corp., and Atlantic City Broadcasting Corp. (the
"Non-Compete Agreement"); and
(xii) such other documents and instruments as Buyer may reasonably
request to consummate the transactions contemplated hereby; and
(xiii) instructions releasing the Escrow Deposit to Buyer.
(b) At the Closing, Buyer shall deliver or cause to be delivered to
Seller the following:
(i) the Purchase Price;
(ii) a copy of the resolutions of the board of directors of Buyer's
general partner authorizing the execution, delivery and performance of this
Agreement, the Time Brokerage Agreement and the Escrow Agreement and the
consummation of the transactions contemplated hereby and thereby together with a
certificate of the Secretary of Buyer's general partner dated as of Closing
Date, that such resolutions were duly adopted and are in full force and
effect;
(iii) the certificates contemplated by Sections 8.1 and 8.2; and
(iv) such other documents and instruments as Seller may reasonably
request to consummate the transactions contemplated hereby.
2.3 Proration of Expenses. (a) All costs and expenses arising from the
operations of the Station (other than costs and expenses incurred or assumed by
Buyer in its capacity as Time Broker under the Time Brokerage Agreement) up to
and including 11:59 p.m. of the day prior to the Closing Date (the "Cut Off
Time"), will be prorated between Buyer and Seller so that Seller shall be
responsible for all expenses, costs, liabilities and obligations allocable to
the conduct of the business and the operation of the Station (other than Buyer's
expenses as Time Broker) for the period prior to the Cut-Off Time; and Buyer (x)
shall be entitled to receive all income and revenues and all refunds from and
after the commencement of Buyer's activities under the Time Brokerage Agreement
and (y) shall be responsible for all expenses, costs, liabilities and
obligations allocable to the conduct of the business and the operation of the
Station for the period after the Cut-Off Time. Items to be apportioned pursuant
to this paragraph shall include the following:
(i) all personal property taxes, real estate taxes, water taxes, ad
valorem, and other property taxes or assessments on or with respect to the
assets and property interests to be transferred or assigned to Buyer hereunder;
(ii) business and license fees including any FCC Regulatory Fees (and
any retroactive adjustments thereof); wages, salaries and benefits of employees
(including accruals up to the Cut-Off Time for insurance premiums, bonuses,
commissions, sick pay, vacation pay and the like and related payroll taxes) and
similarly prepaid and deferred items;
(iii) liabilities and obligations under all Broadcast Agreements and any
negative balances under the Trade Agreements to be assigned and assumed
hereunder;
(iv) sewer rents and charges for water, electricity and other utility
expenses and fuel;
(v) property and equipment rentals, applicable copyright or other fees,
sales and other charges; and
(vi) rents, additional rents and similar prepaid and deferred items,
taxes and other items payable under any lease, contract, commitment or other
agreement or arrangement to be assigned and assumed hereunder and all other
income and expenses attributable to the ownership and operation of the Station.
Taxes to be apportioned pursuant to this Section 2.3 shall be
apportioned in proportion to (x) the number of days in the taxable period before
and including the Cut-Off Time and (y) the number of days in the taxable period
after the Cut-Off Time. No apportionment shall be made pursuant to this Section
of any federal, state, foreign or local income taxes. Any tax refunds or rebates
accruing before the Cut-Off Time for taxes that were paid prior to Closing shall
remain the property of Seller, whether such refund is paid before or after the
Closing Date.
(b) Time for Payment. The prorations and adjustments contemplated by
this Section 2.3, to the extent practicable, shall be made on the Closing Date.
Not less than three (3) Business Days prior to the Closing Date, Seller shall
submit to Buyer a written estimate of adjustments and prorations to be made in
accordance with this Article. Prior to the Closing, Buyer and Seller will
attempt in good faith to agree on an amount of any adjustment and proration
payment to be made on the Closing Date. As to those prorations and adjustments
not capable of being ascertained on the Closing Date, an adjustment and
proration shall be made within 90 days of the Closing Date.
(c) Dispute Resolution. In the event of any disputes between the parties
as to such adjustments, the amounts not in dispute shall nonetheless be paid at
the time provided in
Section 2.3(a) and such disputes shall be determined by an independent certified
public accountant mutually acceptable to the parties whose determination shall
be final, and the fees and expenses of such accountant shall be paid one-half by
Seller and one-half by Buyer.
2.4 Termination.
(a) This Agreement may be terminated at any time by:
(i) the mutual written consent of the parties hereto;
(ii) either Buyer or Seller if the Closing Date does not occur on or
before December 31, 1996;
(iii) Buyer, if any of the conditions set forth in Article VII shall not
have been either fulfilled or waived by Buyer on or before the Closing Date, or
if Seller shall have breached any of its representations, warranties or
obligations hereunder which are qualified by a standard of materiality or words
of similar import, or if Seller shall have breached in any material respect any
other representation, warranty or obligation hereunder and, in either case, such
breach shall not have been cured in all material respects or waived prior to the
earlier of the Closing Date and fifteen (15) days after the Buyer has given
notice to Seller of such breach; or
(iv) Seller, if any of the conditions set forth in Article VIII shall
not have been either fulfilled or waived by Seller, or if Buyer shall have
breached any of its representations, warranties or obligations hereunder which
are qualified by a standard of materiality or words of similar import, or if
Seller shall have breached in any material respect any other representation,
warranty or obligation hereunder and, in either case, such breach shall not have
been cured in all material respects or waived prior to the earlier of the
Closing Date and fifteen (15) days after Seller has given notice to Buyer of
such breach.
(b) In the event of the termination of this Agreement by Buyer or Seller
pursuant to this Section 2.4, written notice thereof shall promptly be given to
the other
party and, except as otherwise provided herein, the transactions contemplated by
this Agreement shall be terminated, without further action by any party. Nothing
in this Section 2.4 shall be deemed to release any party from any liability for
any breach by such party of the terms and provisions of this Agreement or to
impair the right of Buyer to compel specific performance of Seller of its
obligations under this Agreement.
(c) The time for Commission approval provided in this Agreement
notwithstanding, either party may terminate this Agreement upon written notice
to the other, if, for any reason, the Assignment Application is designated for
hearing by the Commission, provided, however, that written notice of termination
must be given within twenty (20) days after release of the Hearing Designation
Order and that the party giving such notice is not in default and has otherwise
complied with its obligations under this Agreement. Upon termination pursuant to
this Section 2.4(c), the parties shall be released and discharged from any
further obligation hereunder and the Escrow Deposit shall be returned to the
Buyer.
(d) Notwithstanding the provisions of Section 2.4(a) - (c) above, no
party may terminate this Agreement if such party is in default hereunder, or if
a delay in any decision or determination by the Commission respecting the
Assignment Application has been caused or materially contributed to (i) by any
failure of such party to furnish, file or make available to the Commission
information within its control; (ii) by the willful furnishing by such party of
incorrect, inaccurate or incomplete information to the Commission; and (iii) by
any other action taken by such party for the purpose of delaying the
Commission's decision or determination respecting the Assignment Application.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Due Incorporation. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and is
duly qualified to conduct business and is in good standing in the State of New
Jersey, and in any other jurisdiction in which the nature of its business or the
ownership or leasing of its properties requires such qualifications. Seller has
the corporate power and authority to (i) own, lease, and use the Station Assets
and properties as now used, owned, and leased; and (ii) to conduct the business
of operating the Station as now conducted.
3.2 Authority; No Conflict. The execution and delivery of this
Agreement, the Escrow Agreement and the Time Brokerage Agreement and any other
agreements and instruments contemplated herein or executed in connection
herewith (collectively, the "Seller Agreements") have been duly and validly
authorized and approved by the board of directors and stockholders of Seller,
and Seller has the corporate power and authority to execute, deliver and perform
all the Seller Agreements and to consummate the transactions contemplated hereby
and thereby. Neither such execution, delivery or performance nor compliance by
Seller with the terms and provisions hereof, or with respect to the Seller
Agreements, will (assuming receipt of all necessary approvals from the
Commission) conflict with or result in a breach of any of the terms, conditions
or provisions of (a) the Certificate of Incorporation or Bylaws of Seller, (b)
any law, judgment, order, injunction, decree, regulation or ruling of any court
or other governmental authority to which Seller is subject or applicable to
Seller or the Station, or (c) any agreement, lease or contract, written or oral,
to which Seller is subject. This Agreement, the Escrow Agreement and the Time
Brokerage Agreement constitute and as of the Closing Date, all other Seller
Agreements will constitute, the legal, valid and binding obligations of the
Seller, enforceable against it in accordance with their terms.
3.3 Government Authorizations. Section 1.1(a) of the Disclosure Schedule
contains a true and complete list of all the Licenses, which Licenses and
government
authorizations of any kind held or used in the operation of the Station are
sufficient for the lawful conduct of the business and operation of the Station
in the manner and to the full extent they are currently conducted. Seller is the
authorized legal holder of the Licenses, none of which is subject to any
restriction or condition which would limit in any material respect the full
operation of the Station as now operated. There are no applications, complaints
or proceedings (judicial, administrative or otherwise) pending or, to the best
of Seller's knowledge, threatened before the Commission or any other
governmental authority relating to the business or operations of the Station,
other than rule making and similar proceedings which generally affect the
broadcasting industry as a whole, and other than reports and forms filed in the
ordinary course of the Station's business. Seller has delivered to Buyer true
and complete copies of the Licenses, including any and all additions, amendments
and other modifications thereto. The Licenses and authorizations are in good
standing, are in full force and effect and are unimpaired by any act or omission
of Seller or its officers, directors or employees; and the operation of the
Station is in accordance with the Licenses and the underlying construction
permits. No proceedings are pending or, to the best of Seller's knowledge, are
threatened which may result in the revocation, modification, non- renewal or
suspension of any of the Licenses, the denial of any pending applications, the
issuance of any cease and desist order, the imposition of any administrative
actions by the Commission with respect to the Licenses or which may affect
Buyer's ability to continue to operate the Station as it is currently operated.
Seller has not taken any action which could lead to revocation or non- renewal
of the Licenses, nor omitted to take any action which, by reason of its
omission, could lead to revocation of the Licenses. All reports, forms and
statements required to be filed with the Commission with respect to the Station
since Seller has owned WAYV-FM have been filed and
are complete and accurate. Without limiting the generality of the foregoing, all
ownership reports, renewal applications, equal employment opportunity reports
and other reports and documents required to be filed by Seller with the FCC have
been properly filed. Since Seller has owned WAYV-FM the FCC's renewal of the
Station Licenses has not been challenged by a petition to deny, or by a
competing application. Seller has not entered into any agreement with any
community group, governmental authority or other third party restricting
programming or other aspects of the operation of the Station which would or
could restrict Buyer's discretion to operate the Station when licensed to Buyer,
and there has been no dispute with any community group, governmental authority
or other third party as to the manner of operation of the Station. Seller is not
aware of any reason why the FCC would deny its consents to the assignment of the
Station Licenses to Buyer hereunder. There are no facts which, under the
Communications Act of 1934, as amended, or the existing rules and regulations of
the Commission, would disqualify Seller as assignor, in connection with the
Assignment Application.
3.4 Compliance with Regulations. The operation of the Station is in
compliance with (i) all standards of good engineering practice, (ii) all
applicable engineering standards required to be met under Commission rules, and
(iii) all other applicable rules, regulations, requirements and policies of the
Commission and all other applicable governmental authorities, including, but not
limited to, ANSI Radiation Standards; and there are no existing claims,
citations or notices of any governmental authority to the contrary.
3.5 Personal Property. Except for those assets subject to lease
agreements (but not excepting the lease agreements themselves), Seller owns and
has good and marketable title to the Station Assets, and none of the Station
Assets on the Closing Date will be subject to any security interest, mortgage,
pledge, conditional sales agreement or other lien or encumbrance.
The Personal Property is all the tangible personal property used in or
necessary for the lawful operation of the Station as presently operated by
Seller. Except as specifically indicated to the contrary in Section 1.1(b) of
the Disclosure Schedule, all Personal Property is serviceable and in good
operating condition (reasonable wear and tear excepted). All items of
transmitting and studio equipment included in the Personal Property (i) have
been maintained in a manner consistent with generally accepted standards of good
engineering practice and (ii) permit the Station to operate in accordance with
the terms of the Licenses.
3.6 Real Property. Neither Seller nor any affiliate of Seller owns any
real property used in connection with the operation of the Station.
3.7 Real Estate Contracts.
(a) Section 1.1(c) of the Disclosure Schedule contains a true and
complete list and summary of all the Real Estate Contracts. Seller has a valid
leasehold interest in the real property subject to the Real Estate Contracts.
The present use by the Station of all real property leased pursuant to the Real
Estate Contracts conforms with all applicable building, zoning, land use,
environmental and other laws, ordinances, codes, orders and regulations and all
other governmental regulations, including, without limitation, the standards,
rules and regulations of the FCC. The transmitter for the Station is operating
in accordance with and within the parameters established by the FCC and the
Station's Licenses. The broadcast tower for the Station is in compliance with
the Federal Aviation Act, and all rules and regulations promulgated thereunder
and all other applicable laws, including, without limitation, all applicable
building, zoning, land use and environmental laws, ordinances, codes and
regulations.
(b) As of the date hereof, Seller has complied with all of the Real
Estate Contracts and has not received or given oral or written notice of any
default thereunder from or to any of the other parties thereto. Seller shall use
its best efforts to obtain valid and binding
third-party consents, if any are necessary, from all required third parties to
the Real Estate Contracts to be conveyed and assigned to Buyer as part of the
Station Assets.
(c) The real property subject to the Real Estate Contracts is all of the
real property used in or necessary for the lawful operation of the Station as
presently operated by Seller. Seller has and, after the Closing Date, Buyer will
have, full legal and practical access to such real property pursuant to valid
easements or pursuant to public rights of way. All utilities servicing the
Station have access to such real property pursuant to valid easements or
pursuant to public rights of way. There are no encroachments upon such real
property by any buildings, structures, or improvements located on adjoining real
estate. None of the buildings, structures, or improvements that are constructed
on the real property and used in the present operation of the Station (including
without limitation all guy wires and guy anchors) encroaches upon adjoining real
estate, and all such buildings, structures, and improvements are constructed in
conformity with all "set-back" lines, easements and other restrictions or rights
of record, and all applicable building or safety codes and zoning ordinances.
There are no pending or, to the best of Seller's knowledge, threatened
condemnation or eminent domain proceedings that may affect such real property,
nor has any of such real property been condemned. There are no structural
defects in the towers, buildings, structures and other improvements located on
such real property that are used in the operation of the Station. The Real
Estate Contracts (or memoranda thereof) have been duly recorded in the land
records of the jurisdictions where such real estate is located, or will be so
recorded prior to Closing. True and correct copies of the Real Estate Contracts
have been provided to Buyer.
3.8 Consents. No consent, approval, authorization or order of, or
registration, qualification or filing with, any court, regulatory authority or
other governmental body is required
for the execution, delivery and performance by Seller of this Agreement or the
Seller Agreements, other than approval by the Commission of the Assignment
Application as contemplated hereby. Except as set forth in Section 3.8 of the
Disclosure Schedule, no consent of any other party (including, without
limitation, any party to any Real Estate Contract or Contract) is required for
the execution, delivery and performance by Seller of the Seller Agreements.
3.9 Contracts. Section 1.1(e) of the Disclosure Schedule contains a true
and complete list of all Contracts, and Section 1.1(f) contains a true and
complete list of all Broadcast Agreements and Trade Agreements, including the
dollar amount of the broadcasting time owed by the Station under each such
agreement as of the date of this Agreement. Seller has delivered to Buyer true
and complete copies (or, in the case of unwritten Broadcast Agreements and Trade
Agreements, accurate written summaries of all material provisions thereof) of
all Contracts, Broadcast Agreements and Trade Agreements, and prior to the
Closing Date Seller will have delivered to Buyer all Post-signing Contracts,
including any and all amendments and other modifications to same. As of the date
hereof, all of the Assumed Contracts are in full force and effect and
enforceable in accordance with their terms, and the sale of the Assets as
contemplated herein will in no way affect the validity, enforceability and
continuity of any such contracts or agreements if properly assigned to Buyer as
contemplated hereby. Seller has complied with the Assumed Contracts, and to the
knowledge of Seller no other contracting party is in default under any of same.
The Assumed Contracts include all agreements to which Seller is a party or by
which it is bound relating to the ownership or operation of the Station.
3.10 Environmental.
(a) Seller has not unlawfully disposed of any Hazardous Waste in a
manner which has caused, or could cause, Buyer to incur a liability under
applicable law in connection therewith;
and Seller warrants that the technical equipment included in the Personal
Property does not contain any Hazardous Waste, including any Polychlorinated
Biphenyls ("PCBs") that are required by law to be removed, or if any equipment
does contain Hazardous Waste, including any PCBs, that such equipment is stored
and maintained in compliance with applicable law. Seller has complied with all
federal, state and local environmental laws, rules and regulations applicable to
the Station and its operations, including but not limited to the Commission's
guidelines regarding RF radiation. Without limiting the generality of the
foregoing, (i) no Hazardous Waste has been disposed of by Seller on the real
property subject to the Real Estate Contracts, (ii) no "underground storage
tank" (as that term is defined in regulations promulgated by the federal
Environmental Protection Agency) is used in the operation of the Station or is
located on such real property; (iii) no Hazardous Waste is located on or about
such real property and such real property has not previously been used for the
manufacture, refining, treatment, storage, or disposal of any Hazardous Waste;
(iv) none of the soil, ground water, or surface water of such real property is
contaminated by any Hazardous Waste and there is no reasonable potential for
such contamination from neighboring real estate, (v) no Hazardous Waste is being
emitted, discharged or released from such real property, directly or indirectly,
into the environment; and (vi) Seller is not liable for cleanup or response
costs with respect to any present or past emission, discharge, or release of any
Hazardous Waste. As used herein, the term "Hazardous Waste" shall mean all
materials regulated by any federal, state, local or foreign laws relating to
pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, ground water, land surface or subsurface
strata). If Seller learns between the date of this Agreement and the Closing
Date that Seller is in breach of the representation and warranty set forth in
this Section 3.10, Seller shall begin remedial action promptly and shall use
best efforts to
complete such remedial action to the satisfaction of Buyer before the Closing
Date. Buyer shall not be obligated to close until any such condition is
corrected.
(b) No notice of violation, lien, complaint, suit, order or other notice
or communication concerning any alleged violation of any environmental standard,
rules, regulations and laws in, on, under or about any of the real property
subject to the Real Estate Contracts has been received by Seller or its
affiliates, or to the best of Seller's knowledge, any owner or prior owner or
occupant of any of the real property which has not been fully satisfied and
complied with all federal, state and local environmental laws, standards, rules
and regulations.
(c) Seller has all permits and licenses required under any federal,
state and local environmental laws, rules and regulations to be issued to it by
any governmental authority on account of any or all of its activities on any of
the real property and is in material compliance with the terms and conditions of
such permits and licenses. Any and all such permits and licenses are described
in Section 1.1(a) of the Disclosure Schedule. To the best of Seller's knowledge,
no change in the facts or circumstances reported or assumed in the application
for granting of such permits or licenses exist, and such permits and licenses
are in full force and effect.
(d) To the best of Seller's knowledge, no portion of any of the real
property subject to the Real Estate Contracts has been listed, designed or
identified in the National Priorities List (NPL) or the CERCLA Information
System (CERCLIS), both as published by the United States Environmental
Protection Agency, or any similar list of sites published by any federal, state
or local authority proposed for or requiring cleanup, or remedial or corrective
action under any federal, state or local environmental laws, rules and
regulations.
(e) Exceptions, if any, to the foregoing representations are set forth
in Section 3.10 to the Disclosure Schedule.
3.11 Intellectual Property. Section 1.1(d) of the Disclosure Schedule is
a true and complete list of all the material Intellectual Property used in
connection with the operation of
the Station, all of which are in good standing and uncontested. Such
Intellectual Property has been duly registered in, filed with, or issued by the
appropriate offices within all jurisdictions where such registration, filing or
issuance is necessary to protect such Intellectual Property from infringement,
including, without limitation, the United States Copyright Office and the United
States Patent and Trademark Office. Seller has not granted any license or other
rights with respect to such Intellectual Property. Seller has not received any
written notice and has no knowledge of any infringement or unlawful use of the
Intellectual Property and Seller has not violated or infringed any patent,
trademark, trade secret or copyright held by others or any license,
authorization or permit held by it.
3.12 Financial Statements. Section 3.12 of the Disclosure Schedule
contains a copy of the unaudited statements of income, and the related balance
sheets for Seller as at December 31, 1994 and December 31, 1995 and for the
fiscal years then ended and statements of income for each month during 1995 (the
"Financial Statements"). The Financial Statements have been prepared in
accordance with generally accepted accounting principles, consistently applied.
The Financial Statements present fairly the financial condition and results of
operations of the Station for the periods indicated, and there has been no
material adverse change in Seller's financial condition between December 31,
1995 and the date of this Agreement.
3.13 Personnel Information; Labor Contracts.
(a) Section 3.13 of the Disclosure Schedule contains a true and complete
list of all persons employed at the Station as of the date hereof, including the
date of hire, a description of compensation arrangements and a list of any and
all agreements affecting such persons. Seller has provided Buyer with true and
correct copies of all such agreements.
(b) Seller is not a party to any contract with any labor organization,
nor has Seller agreed to recognize any union or other collective bargaining
unit, nor has any union or other collective bargaining unit been certified as
representing any of Seller's employees. Seller has no knowledge of any
organizational effort currently being made or threatened by or on behalf of any
labor union with respect to employees of the Station. During the past two years,
Seller has not experienced any strikes, work stoppages, grievance proceedings,
claims of unfair labor practices filed, or other labor difficulties of any
nature.
(c) Seller has complied with all laws relating to the employment of
labor, including, without limitation, the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and those laws relating to wages, hours,
collective bargaining, unemployment insurance, workers' compensation, equal
employment opportunity and the payment and withholding of taxes.
3.14 Employee Benefit Plans. Seller maintains no employee benefit plan
(as that term is defined in Section 3(3) of ERISA).
3.15 Litigation. Except as set forth in Section 3.15 of the Disclosure
Schedule, Seller is not subject to any judgment, award, order, writ, injunction,
arbitration decision or decree, and there is no litigation, action, suit,
proceeding or investigation pending or, to the best of Seller's knowledge,
threatened against Seller or the Station in any federal, state or local court,
or before the FCC or any other administrative agency or arbitrator (including,
without limitation, any proceeding which seeks the forfeiture of, or opposes the
renewal of, any of the Licenses), or before any other tribunal duly authorized
to resolve disputes, which would reasonably be expected to have any material
adverse effect upon the Station Assets or which seeks to enjoin or prohibit, or
otherwise questions the validity of, any action taken or to be taken pursuant to
or in connection with this Agreement. In particular, but without limiting the
generality of the foregoing, except as set forth in Section 3.15 of the
Disclosure Schedule, there are no applications, complaints or
proceedings pending or, to the best of Seller's knowledge, threatened before the
Commission or any other governmental organization with respect to the business
or operation of the Station which would (i) impair Seller's ability to perform
its obligations under this Agreement, (ii) in any way adversely affect Buyer's
ability to operate the Station as heretofore operated, or (iii) be expected to
have any adverse effect upon the Station Assets, other than rule making or
similar proceedings which affect the broadcast industry generally.
3.16 Compliance with Laws. Seller is in compliance with, and has not
received any notice asserting any non-compliance with, any applicable statute,
rule or regulation (federal, state or local) whether or not related to the
business or operation of the Station, non-compliance with which would have a
material adverse effect on the Station Assets. Seller is not in default with
respect to any judgment, order, injunction or decree of any court,
administrative agency or other governmental authority or to any other tribunal
duly authorized to resolve disputes in any respect material to the transactions
contemplated hereby. Neither any shareholder of Seller or any entity which
shares an officer, director, shareholder or partner with Seller, nor any parent
or subsidiary corporation of Seller has had an adverse finding made or final
action taken by any court or administrative body in a civil or criminal
preceding relating to (1) a felony, (2) an antitrust or unfair competition
claim, (3) criminal violations involving false statements or dishonesty, (4)
misrepresentation to any governmental unit resulting in civil or criminal
violations, or (5) employment discrimination, nor to the best of Seller's
knowledge is any such proceeding threatened or in progress.
3.17 Insurance. Section 3.17 of the Disclosure Schedule contains a true
and complete list of all Seller's insurance policies. All such policies are in
full force and effect and Seller has received no notice of cancellation with
respect thereto. True and complete copies of Seller's insurance policies have
been provided to Buyer.
3.18 Instruments of Conveyance; Good Title. The instruments to be
executed by Seller and delivered to Buyer at Closing, conveying the Station
Assets to Buyer, will be in a form sufficient to transfer good and marketable
title to the Station Assets free and clear of all liens, pledges, collateral
assignments, security interests, capital or financing leases, easements,
covenants, restrictions and encumbrances or other defects of title except the
lien of any real estate or personal property taxes that will not become due
until after the Closing Date and that will be prorated between Seller and Buyer
pursuant to Section 2.3.
3.19 Absence of Certain Changes. Except as disclosed in Section 3.19 of
the Disclosure Schedule, and except for those changes or actions expressly
implemented by or at the written request of Buyer following the date hereof
pursuant to the Time Brokerage Agreement, between the Balance Sheet Date and the
Closing Date there has not been:
(a) Any material adverse change in the Station Assets;
(b) Any change in the manner in which Seller conducts its business and
operations other than changes in the ordinary and usual course of business
consistent with past practice;
(c) Any amendment to the Certificate of Incorporation or Bylaws of
Seller;
(d) Any material contract or commitment, to which Seller is a party,
entered into, modified or terminated, except in the ordinary and usual course of
business;
(e) Any creation or assumption of any mortgage, pledge or other lien or
encumbrance upon any of the Station Assets;
(f) Any sale, assignment, lease, transfer, or other disposition of any
of the Station Assets, except in the ordinary and usual course of business;
(g) The incurring of any material liabilities or obligations, except
items incurred in the ordinary and usual course of business;
(h) The write-off or determination to write off as uncollectible any
accounts receivable or portion thereof, except for write-offs in the ordinary
course of business consistent with past practice;
(i) The cancellation of any debts or claims, or waiver of any rights,
having an aggregate value in excess of $5,000;
(j) The disposition, lapse or termination of any Intellectual Property;
(k) The increase or promise to increase the rate of commissions, fixed
salary or wages, draw, bonus or other compensation payable to any employee of
Seller, except in the ordinary and usual course of business consistent with past
practice; or
(l) Any change in any method of accounting or accounting practice used
by Seller.
3.20 Insolvency Proceedings. No insolvency proceedings of any character
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
Seller or the Station Assets are pending or, to Seller's knowledge, threatened,
and Seller has made no assignment for the benefit of creditors, nor taken any
action with a view to, or which would constitute the basis for, the institution
of any such insolvency proceedings.
3.21 Location of Assets. The addresses of Seller's chief executive
office and all of Seller's additional places of business, and of all places
where any of the tangible personal property included in the Station Assets is
now located, or has been located during the past six (6) months, are listed in
Section 3.21 of the Disclosure Schedule. Except as set forth in Section 3.21 of
the Disclosure Schedule, during the past five (5) years, Seller has not nor, to
the best of Seller's knowledge, has any prior owner of the Station been known by
or used any corporate, partnership, fictitious or other name in the conduct of
the Station's business or in connection with the use or operation of the Station
Assets.
3.22 Citizenship. Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code. On the Closing Date, Seller
will deliver to Buyer an affidavit to that effect, verified as true and sworn to
under penalty of perjury by a duly authorized officer of Seller. The affidavit
shall also set forth Seller's name, address, taxpayer identification number, and
such additional information as may be required to exempt the Transaction from
the withholding provisions of Section 1445 of the Internal Revenue Code. Buyer
shall have the right to furnish copies of the affidavit to the Internal Revenue
Service.
3.23 Tax Matters. All federal, state, county and local tax returns,
reports and declarations of estimated tax or estimated tax deposit forms
required to be filed by Seller in connection with its operations, personal
property or payroll have been duly and timely filed; Seller has paid all taxes
which have become due pursuant to such returns or pursuant to any assessment
received by it, and has paid all installments of estimated taxes due; and all
taxes, levies and other assessments which Seller is required by law to withhold
or collect have been duly withheld and collected and have been paid over to the
proper governmental authorities or are held by Seller for such payment.
3.24 Material Facts. No representation or warranty made by Seller in
this Agreement and no statement made by Seller in (a) any certificate, exhibit,
schedule, or other writing executed and delivered by Seller in connection
herewith, (b) any other agreement, document or writing furnished in connection
with the transactions herein contemplated and referred to herein or in the
Disclosure Schedule attached hereto, or (c) in any document or other writing
delivered to Buyer after the date hereof and on or prior to the Closing Date, by
or on behalf of the Seller, knowingly contains or will knowingly contain any
untrue statement of a material fact, or knowingly omits or will knowingly omit
to state any material fact necessary in order to make the statements contained
herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Due Incorporation. Buyer is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and as of the Closing Date shall be duly qualified to do business in and be in
good standing in the State of New Jersey.
4.2 Authority; No Conflict. The execution and delivery of this
Agreement, the Time Brokerage Agreement, the Escrow Agreement and other
agreements and instruments contemplated herein or executed in connection
herewith (collectively, the "Buyer Agreements") have been duly and validly
authorized and approved by the board of directors of Buyer, and Buyer has the
partnership power and authority to execute, deliver and perform the Buyer
Agreements and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance hereof, and compliance by Buyer with the
terms and provisions hereof, or with respect to the Buyer Agreements, will not
(assuming receipt of all necessary approvals from the Commission) conflict with
or result in a breach of any of the terms, conditions or provisions of (a) the
Certificate of Limited Partnership or Agreement of Limited Partnership of Buyer,
(b) any judgment, order, injunction, decree, regulation or ruling of any court
or other governmental authority to which Buyer is subject, or (c) any material
agreement, lease or contract, written or oral, to which Buyer is subject. This
Agreement, the Escrow Agreement and the Time Brokerage constitute and as of the
Closing Date all other Buyer Agreements will constitute the valid and binding
obligations of Buyer with respect to the terms hereof.
4.3 Consents. No consent, approval, authorization or order of, or
registration, qualification or filing with, any court, regulatory authority or
other governmental body is required for the execution, delivery and performance
by Buyer of this Agreement or the Escrow
Agreement, other than the approval by the Commission of the Assignment
Application as contemplated hereby. Except as set forth in Section 4.3 of the
Disclosure Schedule and except for consents from parties to agreements with
Seller, which consents are required to transfer the Station Assets to Buyer, no
consent of any other party is required for the execution, delivery and
performance by Buyer of the Buyer Agreements.
4.4 Litigation. There is no litigation, proceeding or investigation
pending or, to the best of Buyer's knowledge, threatened against Buyer in any
federal, state or local court, or before any administrative agency or
arbitrator, or before any other tribunal duly authorized to resolve disputes,
that would reasonably be expected to have any material adverse effect upon the
ability of Buyer to perform its obligations hereunder, or that seeks to enjoin
or prohibit, or otherwise questions the validity of, any action taken or to be
taken pursuant to or in connection with this Agreement.
4.5 Compliance with Laws. Buyer is not in default with respect to any
judgment, order, injunction or decree of any court, administrative agency or
other governmental authority or of any other tribunal duly authorized to resolve
disputes in any respect material to the transactions contemplated hereby. Buyer
is not in violation of any law, regulation or governmental order, the violation
of which would have a material adverse effect on Buyer's ability to perform its
obligations pursuant to this Agreement.
4.6 Qualification. To the best of Buyer's knowledge, Buyer is legally,
technically and financially qualified to be the assignee of the Licenses and the
other Station Assets, and, prior to the Closing Date, Buyer will exercise its
best efforts to refrain from doing any act which would disqualify Buyer from
being the assignee of the Licenses and the other Station Assets.
4.7 Financing. Buyer believes in good faith that by the Closing Date it
will have sufficient financing to consummate the transactions contemplated
hereby.
ARTICLE V
COVENANTS OF SELLER
Except to the extent that certain changes with respect to the business
and operation of the Station are expressly implemented by or at the written
request of Buyer pursuant to the Time Brokerage Agreement, Seller covenants and
agrees that from the date hereof until the Closing Date:
5.1 Continued Operation of Station. Seller shall continue to operate the
Station under the terms of the Licenses in the manner in which the Station has
been operated heretofore, in the usual and ordinary course of business, in
conformity with all material applicable laws, ordinances, regulations, rules and
orders, and in a manner so as to preserve and xxxxxx the goodwill and business
relationships of the Station and Seller, including, without limitation,
relationships with advertisers, suppliers, customers, and employees. Seller
shall file with the Commission and any other applicable governmental authority
all applications and other documents required to be filed in connection with the
continued operation of the Station.
5.2 Financial Obligations. Seller shall continue to conduct the
financial operations of the Station, including its credit and collection
policies, in the ordinary course of business with the same effort, to the same
extent, and in the same manner, as in the prior conduct of the business of the
Station; and shall continue to pay and satisfy all expenses, liabilities and
obligations arising in the ordinary course of business in accordance with past
practices and shall provide Buyer on or before the Closing Date with evidence
reasonably satisfactory to the Buyer demonstrating the satisfaction of all
expenses, liabilities and obligations of the Seller to persons or entities doing
business with the Station. Seller shall not enter into or amend any contracts or
commitments involving expenditures by Seller in an aggregate amount in excess of
$5,000
without the prior written consent of Buyer.
5.3 Access. Seller shall provide Buyer, and representatives of Buyer,
with access to the Station 24 hours per day and shall furnish such additional
information concerning the Station and the Station Assets as Buyer from time to
time may reasonably request.
5.4 Maintenance of Assets. Seller shall maintain the Personal Property
and all other tangible assets in their present good operating condition, repair
and order, reasonable wear and tear in ordinary usage excepted. Seller shall not
waive or cancel any claims or rights of substantial value, transfer or otherwise
dispose of any Personal Property, or permit to lapse or dispose of any right to
the use of any Intellectual Property.
5.5 Notification of Developments. Seller shall notify Buyer of any
problems or developments with respect to the Station Assets or operation of the
Station; and provide Buyer with prompt written notice of any change in any of
the information contained in the representations and warranties made herein or
in the Disclosure Schedule or any other documents delivered in connection with
this Agreement.
5.6 Updated Financial Statements. As soon as practicable but in any
event within 21 days of the end of each month, Seller shall, at its own expense,
deliver to Buyer an unaudited balance sheet and income statement of the Station
(excluding revenues and expenses of Buyer pursuant to the Time Brokerage
Agreement) for the month then ended. Such financial statements shall be prepared
in accordance with generally accepted accounting principles, consistently
applied and shall fairly represent the results of the operation of the Station
for the period covered by such statement.
5.7 Encumbrances. Seller shall not suffer or permit the creation of any
mortgage, conditional sales agreement, security interest, lease, lien,
hypothecation, deed of trust or pledge, encumbrance, restriction, liability,
charge, or imperfection of title with respect to the Station Assets.
5.8 Assignment of Assets. Without limiting Seller's obligations
hereunder or
under the Time Brokerage Agreement, Seller shall not sell, assign, lease or
otherwise transfer or dispose of any Station Assets or modify, alter or
terminate any other right relating to or included in the Station Assets, whether
now owned or hereafter acquired, without the prior written approval of Buyer,
except for retirements in the normal and usual course of business or in
connection with the acquisition of similar property or assets, as provided for
herein.
5.9 Commission Licenses and Authorizations. Seller shall not by any act
or omission surrender, modify adversely, forfeit or fail to renew under regular
terms the Licenses, cause the Commission or any other governmental authority to
institute any proceeding for the revocation, suspension or modification of any
such License, or fail to prosecute with due diligence any pending applications
with respect to the Licenses at the Commission or any other applicable
governmental authority.
5.10 Technical Equipment. Seller shall repair, maintain or replace, as
necessary, all equipment transferred hereunder in accordance with the normal
standards of maintenance applicable in the broadcast industry.
5.11 Employees. Seller shall not permit any increase in the rate of
commissions, fixed salary or wages, draw or other compensation payable to any
employees of Seller without the prior written consent of Buyer. Seller shall
refrain from hiring, firing, releasing or transferring any employee of the
Station without the prior written approval of Buyer and shall promptly notify
Buyer upon Seller's becoming aware of the resignation or contemplated
resignation of any employee.
5.12 Sale of Broadcast Time. Seller shall not enter into, extend or
renew any Broadcast Agreement or Trade Agreement.
5.13 Contracts. (a) Seller shall not modify, amend, alter or terminate
any of the Contracts or waive any default or breach thereunder without the prior
approval of Buyer; (b) Seller shall not enter into any contract or agreement not
in effect on the date hereof and listed in
Sections 1.1(c), (e) or (f) of the Disclosure Schedule, except for contracts
entered into in the ordinary course of business which do not involve
consideration having an aggregate value in excess of $5,000 and which may be
terminated on ninety (90) days' notice without premium or penalty; and (c)
Seller shall promptly comply with Buyer's requests, between the date hereof and
the Closing, to (i) enter into any contracts or agreements not in effect on the
date hereof; (ii) modify, amend, alter or terminate any Contracts; or (iii) take
any and all other action with respect to the Contracts or the Station Assets
which Buyer deems necessary or appropriate for the operation of the Station
pursuant to the Time Brokerage Agreement; provided that the requested action is
not inconsistent with customary broadcasting practices in similar situations.
5.14 Taxes. Seller shall pay or cause to be paid or provided for when
due all income, property, use, franchise, excise, social security, withholding,
worker's compensation and unemployment insurance taxes and all other taxes of or
relating to Seller, the Station Assets and the employees of Seller required to
be paid to city, county, state, federal and other governmental units up to the
Closing Date.
5.15 Commission Action. Seller shall provide to Buyer, promptly upon
receipt thereof by Seller, a copy of (i) any notice from the FCC or any other
governmental authority of the revocation, suspension, or limitation of the
rights under, or of any proceeding for the revocation, suspension, or limitation
of the rights under (or that such authority may in the future, as the result of
failure to comply with laws or regulations or for any other reason, revoke,
suspend or limit the rights under) any License, or any other license or permit
held by Seller respecting the Station, and (ii) copies of all protests,
complaints, challenges or other documents filed with the FCC by third parties
concerning the Station and, promptly upon the filing or making thereof, copies
of Seller's responses to such filings. Seller shall notify Buyer in writing
immediately upon
learning of the institution or written threat of any action against Seller
involving the Station in any court, or any action against Seller before the FCC
or any other governmental agency, and notify Buyer in writing promptly upon
receipt of any administrative or court order relating to the Station Assets or
the Station.
5.16 Insurance. Seller shall maintain at all times between the date
hereof and the Closing Date, all policies listed in Section 3.17 of the
Disclosure Schedule or else replace such policies with comparable policies.
5.17 Negotiations with Third Parties. Seller shall not, before Closing
or the termination of this Agreement, enter into discussions with respect to any
sale or offer of the Station, any Station Assets or any stock of Seller to any
third party, nor shall Seller offer the Station, any Station Assets or any stock
of Seller to any third party.
5.18 Third Party Consents. Seller shall use its best efforts to obtain
the consents listed in Section 3.8 of the Disclosure Schedule.
5.19 Normal Operation. Seller shall operate the Station in the normal
and usual manner, consistent with the rules, regulations, and policies of the
Commission, and conduct the Station's business only in the ordinary course.
ARTICLE VI
JOINT COVENANTS OF BUYER AND SELLER
Buyer and Seller covenant and agree that between the date hereof and the
Closing Date, they shall act in accordance with the following:
6.1 Assignment Application. As promptly as practicable after the date of
this Agreement, and in no event later than five (5) business days after
execution of this Agreement, Seller and Buyer shall join in and file an
application on FCC Form 314 with the Commission requesting its consent to the
assignment of the Licenses from Seller to Buyer (the "Assignment Application").
Seller and Buyer agree to prosecute the Assignment Application with all
reasonable diligence and to use their best efforts to obtain prompt Commission
grant of the Assignment Application filed at the Commission.
6.2 Performance. Buyer and Seller shall perform all acts required of
them under this Agreement and the Time Brokerage Agreement and refrain from
taking or omitting to take any action that would violate their representations
and warranties hereunder or render same inaccurate as of the Closing Date.
6.3 Conditions. Buyer and Seller shall use all reasonable efforts to
cause all of the conditions set forth in Articles VII and VIII of this Agreement
to be fulfilled. If any event should occur, either within or without the control
of any party hereto, which would prevent fulfillment of the conditions placed
upon the obligations of any party hereto to consummate the transactions
contemplated by this Agreement, the parties hereto shall use their best efforts
to cure the event as expeditiously as possible.
6.4 Confidentiality. Buyer and Seller shall each keep confidential all
information they obtain with respect to any other party hereto in connection
with this Agreement and the negotiations preceding this Agreement, and will use
such information solely in connection with the transactions contemplated by this
Agreement. If the transactions contemplated hereby are not consummated for any
reason, each party hereto shall return to the party so providing, without
retaining a copy thereof, any schedules, documents or other written information
obtained from the party so providing such information in connection with this
Agreement and the transactions contemplated hereby. Notwithstanding the
foregoing, no party shall be required to keep confidential or return any
information which (i) is known or available through other lawful sources, (ii)
is or becomes publicly known through no fault of the receiving party or its
agents, (iii) is required to be disclosed pursuant to an order or request of a
judicial or governmental authority (provided the disclosing party is given
reasonable prior notice), or (iv) is developed by
the receiving party independently of the disclosure by the disclosing party.
6.5 Cooperation. Buyer and Seller shall cooperate fully and with each
other in taking any actions to obtain the required consent of any governmental
instrumentality or any third party necessary or helpful to accomplish the
transactions contemplated by this Agreement; provided, however, that no party
shall be required to take any action which would have a material adverse effect
upon it or any entity affiliated with it.
6.6 Consents to Assignment. To the extent that any Contract, Broadcast
Agreement, Trade Agreement, Real Estate Contract or other contract identified in
the Disclosure Schedule that is to be assigned under this Agreement is not
capable of being sold, assigned, transferred, delivered or subleased without the
waiver or consent of any third person withholding same (including a government
or governmental unit), or if such sale, assignment, transfer, delivery or
sublease or attempted sale, 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, transfer,
delivery or sublease thereof. In those cases where consents, assignments,
releases and/or waivers have not been obtained at or prior to the Closing Date
to the transfer and assignment to Buyer of such contracts, Buyer may in its sole
discretion elect to have this Agreement and any assignments executed pursuant
hereto, to the extent permitted by law, constitute an equitable assignment by
Seller to Buyer of all of Seller's rights, benefits, title and interest in and
to such contracts, and where necessary or appropriate, Buyer shall be deemed to
be Seller's agent for the purpose of completing, fulfilling and discharging all
of Seller's rights and liabilities arising after the Closing Date under such
contracts. Seller shall use its reasonable best efforts to provide Buyer with
the benefits of such contracts (including, without limitation, permitting Buyer
to
enforce any rights of Seller 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 Seller under such contracts. The provisions of this Section shall
not be construed to limit Seller's obligations under Section 5.18 or Buyer's
rights under Section 7.4.
6.7 Bulk Sales Laws. Seller shall be responsible for compliance with the
provisions of the "bulk sales" or similar laws of any state applicable to this
transaction. Seller agrees to indemnify Buyer and hold it harmless against any
and all claims, losses, damages, liabilities, costs and expenses incurred by
Buyer or any affiliate as a result of any failure to comply with any "bulk
sales" or similar laws.
6.8 Employee Matters. Until the Closing Date, all Station's employees
(other than those who are actually placed on Buyer's payroll pursuant to the
Time Brokerage Agreement) remain the employees of the Seller and Seller shall
have full authority and control over such employees and their actions, and Buyer
shall not assume the status of an employer or a joint employer of, or incur or
be subject to any liability or obligation of an employer with respect to, any
such employees unless and until actually hired by Buyer. Seller shall comply
with the provisions of the Worker Adjustment and Retraining and Notification Act
and similar laws, if applicable, and, except as specifically provided in the
Time Brokerage Agreement, shall be solely responsible for any and all
liabilities, penalties, fines, or other sanctions that may be assessed or
otherwise due under such laws on account of this transaction and the dismissal
or termination of any Station employees by Seller. Buyer may, after Closing,
employ those of Seller's employees as Buyer may elect on terms and conditions
determined by Buyer in Buyer's sole discretion. Except as specifically provided
in the Time Brokerage Agreement, Seller shall remain solely responsible for all
severance pay, accrued vacation time and sick leave of those of Seller's
employees who do
not enter into Buyer's employ after Closing.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF BUYER
The performance of the obligations of the Buyer hereunder is subject, at
the election of the Buyer, to the following conditions precedent:
7.1 Commission Approvals. Notwithstanding anything herein to the
contrary, the consummation of this Agreement is conditioned upon the Commission
having granted the Assignment Application without any conditions and such grant
having become a Final Order. All required governmental filings shall have been
made, and all requisite governmental approvals for the consummation of the
transactions contemplated hereby shall have been granted and become Final
Orders. The Licenses shall be in unconditional full force and effect, shall be
valid for the balance of the current license term applicable generally to radio
stations licensed to communities located in the State of New Jersey, and shall
be unimpaired by any acts or omissions of Seller's employees or agents, or
Seller, and neither Seller nor Buyer shall have received any notice that any
governmental authority may institute any proceedings for the revocation,
suspension or modification of the Licenses.
7.2 Performance. The Station Assets shall have been transferred to Buyer
by Seller free and clear of all liens, encumbrances and claims, and all of the
terms, conditions and covenants to be complied with or performed by Seller on or
before the Closing Date shall have been duly complied with and performed, and
Buyer shall have received from Seller a certificate or certificates to such
effect, from a senior officer of Seller, in form and substance reasonably
satisfactory to Buyer.
7.3 Representations and Warranties. Except for changes expressly
implemented by or at the written request of the Buyer under the Time Brokerage
Agreement,
each of the representations and warranties of Seller to Buyer shall be true,
complete and correct as of the Closing Date with the same force and effect as if
then made, and Buyer shall have received from Seller a certificate or
certificates, to such effect, from a senior officer of Seller in form and
substance reasonably satisfactory to Buyer.
7.4 Consents. Seller shall have received and delivered to Buyer all
consents of third parties (including landlords' consents to the assignments of
the leases for the studio and tower sites) specified in Section 3.8 of the
Disclosure Schedule, such that Buyer will, after the Closing Date, enjoy all of
the rights and privileges of Seller under the Assumed Contracts subject only to
the present obligations of Seller hereunder.
7.5 Opinions of Counsel. Seller shall have delivered to Buyer an opinion
of Haley, Bader & Xxxxx general counsel to Seller, dated the Closing Date, in
the form attached hereto as Exhibit C. In addition, Seller shall have delivered
to Buyer a written opinion of Haley, Bader & Xxxxx, Seller's FCC counsel, dated
the Closing Date, in the form attached hereto as Exhibit D.
7.6 Covenant Not to Compete. Seller shall have obtained and delivered to
Buyer, an executed original of the Non-Compete Agreement.
7.7 Release of Indebtedness. Granite Equities, Inc. shall have released
all liens against the Station Assets and all claims against Seller.
7.8 Environmental Audit. Buyer shall have received within thirty (30)
days from the date hereof, at Buyer's expense, a "Phase One" environmental site
assessment of the real property subject to the Real Property Contracts (the
"Environmental Site Assessment"). The Environmental Site Assessment shall be
conducted by a qualified environmental engineer or consulting firm in accordance
with Part X of the Federal National Mortgage Association's Delegated
Underwriting and Servicing Guide. The Environmental Site Assessment shall show
no
environmental condition on or affecting such real property that would (i)
impair the use or value of such real property for the continued operation of the
Station as operated by Seller on the Closing Date, (ii) subject Buyer to any
liability for fines, penalties, or cleanup or response costs if Buyer
consummates this Agreement, or (iii) cause a reasonable purchaser to perform
further investigation or testing before proceeding with the transfer of the Real
Estate Contracts. The Environmental Site Assessment shall be deemed satisfactory
to Buyer and this condition satisfied, if Buyer fails to notify Seller of such
environmental condition on or affecting the real property within ten (10)
business days after having received such Environmental Site Assessment, or
Seller remedies any environmental condition on or affecting such real property
prior to the Closing Date.
7.9 Occupancy Certificates. At Closing, Seller shall deliver to Buyer
true and complete copies of any certificates of occupancy, certificates of land
use compliance, or equivalent instruments ("Occupancy Certificates") issued by
the appropriate governmental authority, that are required to permit the present
use of the real property subject to the Real Property Contracts by Seller prior
to Closing and by Buyer after Closing. No proceedings to amend, cancel, or
revoke any such Occupancy Certificates shall be pending or threatened as of the
Closing Date. If no Occupancy Certificate is required to continue the present
use of such real property after Closing, then Seller shall deliver to Buyer a
written opinion of Seller's counsel, dated the Closing Date, to that effect,
which opinion shall explain why no occupancy certificate is required and shall
include the citation of any applicable statute or regulation.
7.10 Litigation. No action or proceeding shall have been instituted or
threatened against Buyer, any of Buyer's affiliates or Seller before any court
or governmental agency or commission or any board of arbitration seeking to
restrain or prohibit, or to obtain substantial damages against Buyer or any of
Buyer's affiliates in respect of this Agreement or the consummation of the
transactions contemplated hereby.
7.11 Closing Certificate. Seller shall have delivered to Buyer a
Certificate of Seller's Secretary certifying as to the due adoption by its Board
of Directors and stockholders of resolutions authorizing the transactions
contemplated by this Agreement.
7.12 Title Insurance. Buyer shall have obtained, at Buyer's expense, a
written commitment to issue a lessee's policy of title insurance naming Buyer as
the insured, written by a responsible title insurance company authorized to
write title insurance with respect to New Jersey real estate, which policy shall
guarantee Seller's title in connection with the Real Estate Contracts to be in
the condition called for by this Agreement and shall show no rights of occupancy
or use by third parties, no gaps in the chain of title, no intervening liens and
no violations of any applicable zoning or other ordinance, statute, rule or
regulation.
7.13 Amendment of Lease. The lease pertaining to the transmitter site in
the State of New Jersey shall have been amended in the form of Exhibit E
attached hereto, executed by Seller and the landlord and duly recorded (or a
memorandum) with the recorder's office in the jurisdiction where the property is
located prior to the Closing Date.
7.14 Escrow Deposit. Seller shall have instructed the Escrow Agent to
deliver to Buyer the Escrow Deposit.
7.15 Satisfaction of Expenses. Seller shall have provided to Buyer
evidence reasonably satisfactory to Buyer demonstrating the satisfaction of all
expenses, liabilities and obligations of the Seller to persons and entities
doing business with the Station.
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF SELLER
The performance of the obligations of Seller hereunder is subject, at
the election of Seller, to the following conditions precedent:
8.1 Performance. All of the terms, conditions and covenants to be
complied with or performed by Buyer on or before the Closing Date shall have
been duly complied with and performed in all material respects, and Seller shall
have received from Buyer a certificate or certificates to such effect, in form
and substance reasonably satisfactory to Seller.
8.2 Representations and Warranties. The representations and warranties
of Buyer to Seller shall be true, complete and correct in all material respects
as of the Closing Date with the same force and effect as if then made, and
Seller shall have received from Buyer a certificate or certificates to such
effect from a senior officer of Buyer, in form and substance reasonably
satisfactory to Seller.
8.3 Government Approvals. All required governmental filings shall have
been made and all requisite governmental approvals for the consummation of the
transactions contem- plated hereby shall have been granted.
8.4 Purchase Price. Buyer shall have delivered to Seller the Purchase
Price.
8.5 Closing Certificate. Buyer shall have delivered to Seller a
Certificate of the Buyer's Secretary certifying as to the due adoption by the
Buyer's Board of Directors of resolutions authorizing the transactions
contemplated by this Agreement.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Seller. From and after the Closing Date, Seller
agrees to and shall indemnify, defend and hold Buyer harmless, and shall
reimburse Buyer for and against any and all actions, losses, expenses, damages,
liabilities, taxes, penalties or assessments, judgments and costs (including
reasonable legal expenses related thereto) resulting from or arising out of any
liabilities of any kind or nature, absolute or contingent, relating to or
arising from (i) any breach, misrepresentation, or violation of any of Seller's
representations, warranties,
covenants, or other obligations contained in this Agreement; (ii) all
liabilities of Seller not assumed by Buyer; and (iii) any claims by third
parties against Buyer attributable to Seller's operation of the Station prior to
Closing. Notwithstanding anything else in this Agreement, Buyer shall have no
other recourse to Seller, its shareholders, officers, directors or any other
party with respect to indemnification claims hereunder except (i) Buyer shall
have the right to assert a claim for Seller's assets after the Closing Date in
any action, suit or proceeding to recover any indemnity hereunder; provided,
however, that Buyer shall have no right to claim Seller's assets pursuant to the
foregoing clause in the event the enforcement of such claim would prevent Seller
from meeting any third-party obligation of Seller.
9.2 Indemnification by Buyer. From and after the Closing Date, Buyer
agrees to and shall indemnify, defend and hold Seller harmless, and shall
reimburse Seller for and against any and all actions, losses, expenses, damages,
liabilities, taxes, penalties or assessments, judgments and costs (including
reasonable legal expenses related thereto), resulting from or arising out of any
liabilities of any kind or nature, absolute or contingent, relating to or
arising from the business and operation of the Station (i) prior to the Closing
Date and which have been assumed by Buyer under the Time Brokerage Agreement and
(ii) subsequent to the Closing Date.
ARTICLE X
MISCELLANEOUS
10.1 Damage and Failure of Transmissions.
(a) Risk of Loss. The risk of loss or damage to the Station Assets shall
be borne by Seller at all times prior to Closing. In the event of material loss
or damage, Seller shall promptly notify Buyer thereof and use its best efforts
to repair, replace or restore the lost or damaged property to its former
condition as soon as possible. All insurance proceeds shall
be applied to or reserved for any replacement, restoration or repair. If the
cost of repairing, replacing or restoring any lost or damaged property is Five
Thousand Dollars ($5,000) or less, and Seller has not repaired, replaced or
restored such property prior to the Closing Date, the Closing shall occur as
scheduled and Seller shall pay to Buyer the amount necessary to restore the lost
or damaged property to its former condition. If the cost to repair, replace, or
restore the lost or damaged property exceeds Five Thousand Dollars ($5,000), and
Seller has not repaired, replaced or restored such property prior to the Closing
Date, Buyer may, at its option:
(1) elect to consummate the Closing in which event Seller shall pay to
Buyer the amount necessary to restore the lost or damaged property to its former
condition or against such obligation shall assign to Buyer all of Seller's
rights under any applicable insurance policies plus the amount of the
deductible; or
(2) elect to postpone the Closing, with the prior consent of the
Commission, if necessary, for such reasonable period of time (not to exceed
ninety (90) days) as is necessary for Seller to repair, replace or restore the
lost or damaged property to its former condition. If, after the expiration of
that extension period the lost or damaged property has not been fully repaired,
replaced or restored, Buyer may terminate this Agreement, in which event the
Escrow Deposit shall be returned to Buyer and the parties shall be released and
discharged from any further obligation hereunder.
(b) Failure of Broadcast Transmissions. Seller shall give prompt written
notice to Buyer if any of the following (a "Specified Event") shall occur: (i)
the transmission of the regular broadcast programming of the Station in the
normal and usual manner is interrupted or discontinued and the Station is unable
to broadcast pursuant to its auxiliary power for more than four (4) hours; or
(ii) the Station is operated at less than its licensed antenna
height above average terrain or at less than ninety percent (90%) of its
licensed effective radiated power for more than four (4) hours. If, prior to
Closing, the Station is not operated at its licensed operating parameters for
more than twenty-four (24) hours (or, in the event of force majeure or utility
failure affecting generally the market served by the Station, forty-eight (48)
hours, whether or not consecutive, during any period of thirty (30) consecutive
days, or if there are three (3) or more Specified Events each lasting more than
four (4) consecutive hours, then Buyer may, at its options, terminate this
Agreement. In the event of termination of this Agreement by Buyer pursuant to
this paragraph, the Escrow Deposit shall be returned to Buyer and the parties
shall be released and discharged from any further obligation hereunder.
(c) Resolution of Disagreements. If the parties are unable to agree upon
the extent of any loss or damage, the cost to repair, replace or restore any
lost or damaged property, the adequacy of any repair, replacement, or
restoration of any lost or damaged property, or any other matter arising under
this Section, the disagreement shall be referred to a qualified consulting
communications engineer mutually accepted to Seller and Buyer who is a member of
the Association of Federal Communications Consulting Engineers, whose decision
shall be final, and whose fees and expenses shall be allocated between and paid
by Seller and Buyer, respectively, to the extent that such party does not
prevail on the disputed matters decided by the engineer.
10.2 Assignment.
(a) This Agreement shall not be assigned or conveyed by either party
hereto to any other person or entity without the prior written consent of the
other parties hereto; provided, however, that Buyer may assign this Agreement
without Seller's prior consent to one or more corporations or other entities
controlling, controlled by, or under common control with Buyer. Subject to the
foregoing, this Agreement shall be binding and shall inure to the benefit of
the parties hereto, their successors and assigns.
Notwithstanding anything to the contrary set forth herein, Buyer may
assign and transfer to any entity providing financing for the transactions
contemplated by this Agreement (or any refinancing of such financing) as
security for such financing all of the interest, rights and remedies of Buyer
with respect to this Agreement and the Escrow Agreement, and Seller shall
expressly consent to such assignment. Any such assignment will be made for
collateral security purposes only and will not release or discharge Buyer from
any obligations it may have pursuant to this Agreement. Notwithstanding anything
to the contrary set forth herein, Buyer may (i) authorize and empower such
financing sources to assert, either directly or on behalf of Buyer, any claims
Buyer may have against Seller under this Agreement and (ii) make, constitute and
appoint one agent bank in respect of such financing (and all officers, employees
and agents designated by such agent) as the true and lawful attorney and
agent-in-fact of Buyer for the purpose of enabling the financing sources to
assert and collect any such claims.
10.3 Survival of Representations. Except for the representations and
warranties of Seller contained in Sections 3.7, 3.9, 3.10 and the first sentence
of Section 3.5, which shall survive the Closing permanently, the representations
and warranties contained in this Agreement shall survive the Closing for a
period of one year.
10.4 Brokerage. Seller and Buyer warrant and represent to one another
that, there has been no broker or agent in any way involved in the transactions
contemplated hereby and that no one is or will be entitled to any fee or other
compensation in the nature of a brokerage fee or finder's fee as a result of the
Closing hereunder.
10.5 Expenses of the Parties. It is expressly understood and agreed that
all expenses of preparing this Agreement and of preparing and prosecuting the
Assignment Application with the Commission, and all other expenses, whether or
not the transactions contemplated hereby are consummated, shall be borne solely
by the party who shall have incurred
the same and the other party shall have no liability in respect thereto, except
as otherwise provided herein. All costs of transferring the Station Assets in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be borne by Seller.
Any filing or grant fees imposed by any governmental authority the consent of
which is required for the transactions contemplated hereby shall be borne
equally by Seller and Buyer.
10.6 Entire Agreement. This Agreement, together with any related
Schedules or Exhibits, contains all the terms agreed upon by the parties with
respect to the subject matter herein, and supersedes all prior agreements and
understandings among the parties and may not be changed or terminated orally. No
attempted change, termination or waiver of any of the provisions hereof shall be
binding unless in writing and signed by the party against whom the same is
sought to be enforced.
10.7 Headings. The headings set forth in this Agreement have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any manner, or be deemed to interpret in whole or in part, any of the
terms or provisions of this Agreement. Unless otherwise specified herein, the
section references contained herein refer to sections of this Agreement.
10.8 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York.
10.9 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
such shall constitute one and the same instrument.
10.10 Notices. Any notices or other communications shall be in writing
and shall be considered to have been duly given when deposited into first class,
certified mail, postage prepaid, return receipt requested, delivered personally
(which shall include delivery by
Federal Express or other recognized overnight courier service that issues a
receipt or other confirmation of delivery) or delivered via facsimile machine;
If to Seller:
Xx. Xxxxx X. Xxxxxx
Xxxxxx Communications Corp.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
With a copy which shall not constitute notice to:
Xxx Xxxxxxx
AMRESCO
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
and to:
Xxxxxxxx X. Xxxx, Esq.
Young, French, Young & Lyon
One Market
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
and to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx Xxxxx & Xxxxx P.L.C.
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Buyer:
Xxxxxxx X. Xxxxxxx
Equity Communications, L.P.
c/o M/C Partners
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
With a copy which shall not constitute notice to:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Any party may at any time change the place of receiving notice by giving
notice of such change to the other as provided herein.
10.11 Specific Performance. Seller acknowledges that the Station is of a
special, unique and extraordinary character and that damages are inadequate to
compensate Buyer for Seller's breach of this Agreement. Accordingly, in the
event of a breach under this Agreement by Seller, including, without limitation,
a breach of Seller's representations, warranties, covenants and agreements under
this Agreement, Buyer may seek a decree of specific performance requiring Seller
to fulfill its obligations under this Agreement, and Seller agrees to waive its
defense that an adequate remedy at law exists.
10.12 Arbitration. Other than with respect to Sections 2.3(b) 9.1 and
10.1(c) hereof, any dispute arising out of or related to this Agreement that
Seller and Buyer are unable to resolve by themselves shall be settled by
arbitration in New York, NY, by a panel of three arbitrators. In such event,
Seller and Buyer shall each designate one disinterested arbitrator, and the two
arbitrators so designated shall select the third arbitrator. The persons
selected as
arbitrators need not be professional arbitrators, but shall be persons with no
less than ten year's experience relating to the acquisition of radio stations
and persons such as lawyers, accountants, brokers, and bankers having such
experience shall be acceptable. Before undertaking to resolve the dispute, each
arbitrator shall be duly sworn faithfully and fairly to hear and examine the
matters in controversy and to make a just award according to the best of his or
her understanding. The arbitration hearing shall be conducted in accordance with
the rules of the American Arbitration Association. The written decision of a
majority of the arbitrators shall be final and binding on Seller and Buyer. The
costs and expenses of the arbitration proceeding shall be borne equally by
Seller and Buyer, provided, however, that each party shall bear the expense of
its own counsel, experts, witnesses, and preparation of proofs. Judgment on the
award, if it is not paid within thirty (30) days, may be entered in any court
having jurisdiction over the matter. No action at law or suit in equity based
upon any claim arising out of or related to this Agreement shall be instituted
in any court by Seller or Buyer against the other except (i) an action to compel
arbitration pursuant to this Section, (ii) an action to enforce the award of the
arbitration panel rendered in accordance with this Section, or (iii) a suit for
specific performance pursuant to Section 10.10.
10.13 Consent to Jurisdiction. Seller and Buyer hereby submit to the
nonexclusive jurisdiction of the courts of the State of New York and the federal
courts of the United States of America located in such state solely in respect
of the interpretation and enforcement of the provisions hereof and of the
documents referred to herein, and hereby waive, and agree not to assert, as a
defense in any action, suit or proceeding for the interpretation or enforcement
hereof or of any such document, that they are not subject thereto or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that this Agreement
or any of such documents may not be enforced in or by said courts or that the
Station property is exempt or immune from execution, that the suit, action or
proceeding is brought in an inconvenient forum, or that the venue of the suit,
action or proceeding is improper.
10.14 Further Assurances. Seller and Buyer agree to execute all such
documents and take all such actions after the Closing Date as any other party
shall reasonably request in connection with carrying out and effectuating the
intent and purpose hereof and all transactions and things contemplated by this
Agreement, including, without limitation, the execution and delivery of any and
all confirmatory and other documents in addition to those to be delivered on the
Closing Date and all actions which may reasonably be necessary or desirable to
complete the transactions contemplated hereby.
10.15 Amendments. At any time prior to the Closing, this Agreement may
be amended with the written consent of the Seller and the Buyer.
IN WITNESS WHEREOF, the parties hereto have executed or have caused this
Agreement to be executed by a duly authorized officer on the day and year first
above written.
SELLER
ATLANTIC CITY BROADCASTING CORP.
By
Name: Xxxxx X. Xxxxxx
Title: President
BUYER
EQUITY COMMUNICATIONS, L.P.
By: Equity Communications, Inc.,
its General Partner
By
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman
The undersigned agree to execute and deliver the Non-Compete Agreement
at the Closing.
XXXXXX COMMUNICATIONS CORP.
By_____________________________________
Name: Xxxxx X. Xxxxxx
Title: President
________________________________________
Xxxxx X. Xxxxxx
Consent of Granite Equities, Inc.
The undersigned, being the holder of all indebtedness of Seller under a
Credit Agreement between Seller and National Westminster Bank USA dated as of
March 30, 1994, hereby (i) consents to and approves Seller's execution of the
foregoing Agreement; (ii) concurrently with the wiring of funds pursuant to
Section 1.4 of this Agreement, agrees to release all liens on the Station Assets
securing the aforementioned indebtedness and all claims against Seller on or
before the Closing Date; and (iii) agrees not to assign or transfer any interest
in any portion of the aforementioned indebtedness unless the transferee agrees
in writing to be bound by the provisions of this Consent.
GRANITE EQUITIES, INC.
By AMRESCO Institutional, Inc., as Servicer
and as duly authorized agent for Granite
Equities, Inc.
By:_______________________________________
Name:
Title:
