Exhibit 10.60
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of the 11th day
of March, 2000 among Shirk, Inc., an Indiana corporation ("Shirk"), IBL, L.L.C.,
an Indiana limited liability company ("IBL") (Shirk and IBL, collectively,
"Seller"), and (only as to Section 11.9) William Shirk Poorman and William G.
Mays, each an individual residing in the State of Indiana, and Radio One, Inc.,
a Delaware corporation ("Buyer").
Recitals
--------
Seller owns and operates the following broadcast stations (collectively,
the "Stations") pursuant to certain licenses, permits and authorizations (the
"FCC Authorizations") issued by the Federal Communications Commission (the
"FCC"):
Radio Stations:
WHHH(FM), Indianapolis, Indiana
WBKS(FM), Greenwood, Indiana
WYJZ(FM), Lebanon, Indiana
Television Station:
W53AV, Indianapolis, Indiana (Channel 53)
Construction Permit for W65DW, Indianapolis, Indiana (Channel 65)
(W53AV and the Construction Permit for W65DW may sometimes be referred to
collectively herein as "Station W53AV/W65DW")
Seller desires to sell to Buyer, and Buyer desires to purchase from Seller,
the Station Assets (defined below), subject to the terms and conditions of this
Agreement.
Agreement
---------
NOW, THEREFORE, taking the foregoing into account, and in consideration of
the mutual covenants and agreements set forth herein, the parties, intending to
be legally bound, hereby agree as follows:
ARTICLE 1: SALE AND PURCHASE
-----------------
1.1 Station Assets. Except for Excluded Assets as defined in Section 1.2,
--------------
and subject to and in reliance upon the representations, warranties and
agreements herein set forth, and to the terms and conditions herein contained,
Seller shall grant, convey, sell, assign, transfer and deliver to Buyer on the
Closing Date (as hereinafter defined) all right, title and interest of Seller in
all properties, assets, privileges, rights, interests and claims, real and
personal, tangible and intangible, of every type and description, wherever
located, including its business and goodwill used or held for use in the
business or operation of the Stations (collectively, the "Station Assets").
Without limiting the foregoing, the Station Assets shall include the following:
(a) FCC Authorizations. All of the FCC Authorizations issued with
------------------
respect to the Stations, including without limitation all rights in and to the
Stations' call letters and any variations thereof, and all of those FCC
Authorizations listed and described on Schedule 1.1(a) attached hereto, and all
---------------
applications therefor, together with any renewals or extensions thereof and
additions thereto.
(b) Tangible Personal Property. All interests of Seller as of the
--------------------------
date of this Agreement in all equipment, electrical devices, antennas, cables,
vehicles, furniture, fixtures, towers, office materials and supplies, hardware,
tools, spare parts, and other tangible personal property of every kind and
description, used or held for use in connection with the business or operation
of the Stations, including without limitation those listed and described on
Schedule 1.1(b) attached hereto, and any additions and improvements thereto
- ---------------
between the date of this Agreement and the Closing Date (collectively, the
"Tangible Personal Property").
(c) Real Property. All interests of Seller as of the date of this
-------------
Agreement in all land, leaseholds, licenses, rights-of-way and other interests
of every kind and description in and to all of the real property and buildings
and other improvements thereon, used or held for use in the business or
operation of the Stations, including without limitation those listed and
described on Schedule 1.1(c) attached hereto, and any additions and improvements
---------------
thereto between the date of this Agreement and the Closing Date (collectively,
the "Real Property").
(d) Time Sales Agreements. Those obligations of Seller that exist on
---------------------
the Closing Date for the sale of air time on the Stations for cash that are:
(i) listed on Schedule 1.1(d) attached hereto; or (ii) cancelable without
---------------
penalty on no more than 15 days notice.
(e) Station Contracts. Those contracts and agreements used in
-----------------
connection with the business or operation of the Stations that are: (i) listed
on Schedule 1.1(e) attached hereto or (ii) entered into after the date hereof in
---------------
compliance with Section 4.1(b) (the "Station Contracts").
(f) Intangible Property. All interests of Seller as of the date of
-------------------
this Agreement in all trademarks, trade names, service marks, copyrights,
franchises, patents, jingles, slogans, logotypes and other intangible rights,
used or held for use in connection with the business or operation of the
Stations, including without limitation all right, title and interest in and to
the marks consisting of the Stations' call letters and any variations thereof,
and all of those listed and described on Schedule 1.1(f) attached hereto, and
---------------
those acquired by Seller between the date hereof and the Closing Date
(collectively and together with the Websites (defined below), the "Intangible
Property").
(g) Programming and Copyrights. All interests of Seller as of the
--------------------------
date of this Agreement in all programs and programming materials and elements of
whatever form or nature used or held for use in the business or operation of the
Stations, whether recorded on tape or any other substance or intended for live
performance, and whether completed or in production, and all related common-law
and statutory copyrights used or held for use in the
-2-
business or operation of the Stations, together with all such programs,
materials, elements and copyrights acquired by Seller in the business or
operation of the Stations between the date hereof and the Closing Date.
(h) Files and Records. All FCC logs and other records that relate to
-----------------
the operation of the Stations, and all files and other records of Seller
relating to the business or operation of the Stations and that do not relate
solely to Seller's internal corporate or limited liability affairs (other than
duplicate copies of such files ("Duplicate Records")), including without
limitation all schematics, blueprints, engineering data, customer lists,
reports, specifications, projections, statistics, promotional graphics, original
art work, mats, plates, negatives and other advertising, marketing or related
materials, and all other technical and financial information concerning the
Stations or the Station Assets.
(i) Claims. Any and all claims and rights against third parties if
------
and to the extent that they relate to the Station Assets, including, without
limitation, all rights under manufacturers' and vendors' warranties.
(j) Prepaid Items. All deposits, reserves and prepaid expenses
-------------
relating to the Stations and prepaid taxes relating to the Stations or the
Station Assets listed on Schedule 1.1(j).
(k) Goodwill. All of Seller's goodwill in, and going concern value
--------
of, the Stations.
(l) Accounts Receivable. All accounts receivable (including any notes
-------------------
receivable and other receivables) of Seller with respect to the Stations as of
the Closing Date.
(m) Internet Websites. Without limiting the foregoing, all interests
-----------------
of Seller in any internet domain leases and domain names relating to the
Stations, the unrestricted right to the use of HTML content located and publicly
accessible from those domain names, and the "visitor" email data base for those
sites (collectively, the "Websites").
1.1A Permitted Encumbrances. The Station Assets shall be sold and
----------------------
conveyed to Buyer free and clear of all mortgages, liens, deeds of trust,
security interests, pledges, restrictions, prior assignments, charges, claims,
defects in title and encumbrances of any kind or type whatsoever (collectively,
"Liens") except: (i) liens for real estate taxes not yet due and payable for
which Buyer receives a Purchase Price adjustment under Section 1.7; (ii) the
post-Closing obligations of Seller which Buyer will assume pursuant to Section
1.3 under the Station Contracts and (iii) solely with respect to Real Property,
the Ordinary Exceptions (defined below) (collectively in the case of (i), (ii)
and (iii) above the "Permitted Encumbrances"). "Ordinary Exceptions" means the
following, but only if and to the extent not at any time adversely affecting the
current and intended use of the properties or requiring the removal or
alteration of the presently existing structures, or appurtenant structures
thereon: (a) building and use restrictions of record; (b) vehicular or
pedestrian easements of record affecting the properties and being contiguous to
the front, rear or side lot lines; (c) water,
-3-
sewer, gas, electric, cable television, and telephone lines or easements of
record or as presently installed; (d) other imperfections of title which do not
materially detract from the value or impair the use of the property subject
thereto (collectively, the "Ordinary Exceptions").
1.2 Excluded Assets. There shall be excluded from the Station Assets and
---------------
retained by Seller to the extent in existence on the Closing Date, all (a) cash
and cash equivalents, (b) publicly traded securities, (c) insurance policies
(including all insurance proceeds of settlements and insurance claims made by
Seller on or before the Closing Date, except as provided in Section 10.7 (Risk
of Loss)), (d) any other contracts and agreements not included in the Station
Contracts, (e) all pension, profit sharing and all other employee benefit plans,
(f) all claims, rights, and interest in and to any refunds for federal, state or
local taxes to which Seller is entitled, (g) any Duplicate Records and (h) the
assets listed on Schedule 1.2 hereto (the "Excluded Assets").
------------
1.3 Liabilities. Buyer shall assume as of the Closing all liabilities
-----------
relating to the business and operations of the Stations after the Closing under
the Station Contracts (the "Assumed Obligations"). Except for the Assumed
Obligations, Buyer shall not assume or be liable for any obligation or liability
arising from the pre-Closing operation of the Stations (the "Retained
Liabilities"). The Retained Liabilities include, without limitation: (i) any
liability or obligation of Seller arising out of or relating to any contract,
lease agreement, or instrument (other than the Assumed Obligations); (ii) any
liability or obligation of Seller arising out of or relating to any employee
benefit plan or otherwise relating to employment (including, but not limited to,
any severance obligations due to employees who are terminated by Seller on or
before the Closing Date and all employment obligations shall be brought current
by Seller as of the Closing Date, including the payment of all accrued benefits
and severance pay and all bonuses, whether or not such benefits or bonuses are
due as of the Closing Date); (iii) any liability or obligation of Seller arising
out of or relating to any litigation, proceeding or claim (whether or not such
litigation, proceeding or claim is pending, threatened or asserted before, on or
after the Closing Date); (iv) any other liabilities, obligations, debts or
commitments of Seller whatsoever whether accrued now or hereafter, whether fixed
or contingent, whether known or unknown (except to the extent Seller is entitled
to indemnification therefor from Buyer pursuant to Section 9.2(b) hereof); or
(v) any claims asserted against the Stations or any of the Station Assets
relating to any event (whether act or omission) prior to the Closing Date,
including without limitation, the payment of all taxes. Seller retains and
shall hereafter pay, satisfy, discharge, perform and fulfill all Retained
Liabilities as they become due, without any charge or cost to Buyer.
-4-
1.4 Purchase Price.
--------------
(a) Amount. The purchase price to be paid for the Station Assets
------
shall be $40 million, as adjusted pursuant to Section 1.7 hereof (the "Purchase
Price").
(b) Allocation. The Purchase Price shall be allocated as follows:
----------
(i) $10 million, as adjusted pursuant to Section 1.7 (the
"Shirk Amount") to Shirk for the WHHH(FM) Station Assets; and
(ii) $30 million, as adjusted pursuant to Section 1.7 (the
"IBL Amount") to IBL for the other Station Assets, of which amount $27
million (as adjusted pursuant to Section 1.7) shall be allocated to
the WBKS(FM) and WYJZ(FM) Station Assets and $3 million (as adjusted)
shall be allocated to the Station W53AV/W65DW Station Assets.
(c) Payment. Upon Closing, the Purchase Price shall be paid as
-------
follows: (i) issuance of the Stock Consideration (defined below) to Shirk; and
(ii) payment of the IBL Amount in cash to IBL. Payment of cash shall be in
immediately available funds pursuant to written instructions of the Seller to be
delivered by Seller to Buyer at least three (3) business days prior to Closing.
(d) Definitions. As used herein, the following terms have the
-----------
following meanings:
"Cash Flow Amount" means the amount of reported earnings before
interest, taxes, depreciation and amortization of radio stations WHHH(FM),
WBKS(FM) and WYJZ(FM) plus the addbacks described on Exhibit A hereto, all for
---------
calendar year 1999.
"Closing Price" means $68 per share of Buyer's Class A common stock
(as appropriately adjusted to reflect any stock splits, stock dividends, or
reclassifications of Buyer's Class A common stock, including a merger,
consolidation or recapitalization).
"Stock Consideration" means a number of shares of Buyer's Class A
common stock equal to the Shirk Amount divided by the Closing Price.
"Subscription" means a written subscription delivered by Shirk to
Buyer in form and substance as set forth on Exhibit B attached hereto.
---------
(e) Audit.
-----
(i) Seller shall, at its option and expense, have an audit conducted
by an accounting firm of its choice of the Cash Flow Amount (the "Audit"),
provided that the Audit shall be completed by March 17, 2000. A copy of the
Audit, together with copies of all working papers and other materials used in
and generated by the Audit, and such other items
-5-
relating to the Audit as Buyer shall reasonably request, shall be provided
promptly to Buyer. If the Audit results in a Cash Flow Amount that is at least
$1,700,000 and Buyer disagrees with such result, then Buyer may have an audit of
the Cash Flow Amount conducted by an accounting firm of its choice (the "Buyer
Audit") promptly after the results of the Audit are provided to Buyer, provided
that the Buyer Audit shall be ordered no later than ten business days after the
results of the Audit are provided to Buyer. In the event that the Buyer Audit
results in a Cash Flow Amount that is less than $1,700,000, Seller and Buyer
shall negotiate in good faith to attempt to agree on the Cash Flow Amount. If
such an agreement is not reached within five (5) days of the date of completion
of the Buyer Audit, then Buyer may terminate this Agreement upon written notice
to Seller without further liability hereunder and the Deposit together with
interest thereon shall be returned to Buyer.
(ii) Without limiting Buyer's other rights under this Agreement,
Seller shall timely make available to Buyer for review and/or audit all books
and records necessary to calculate the Cash Flow Amount.
1.5 Deposit. Within one business day of the date of this Agreement, Buyer
-------
shall deposit Two Million Dollars ($2,000,000) (the "Deposit") into escrow with
Wilmington Trust Company (the "Escrow Agent"), pursuant to the Escrow Agreement
of even date herewith among Buyer, Seller and the Escrow Agent. At Closing, the
Deposit together with all interest thereon shall be paid to Seller as a partial
payment of the Purchase Price. If this Agreement is terminated by Seller
pursuant to Section 10.1(h) or 10.1(i), then the Deposit, together with any
interest thereon, shall be disbursed to Seller as liquidated damages and such
disbursement shall be the sole and exclusive remedy of Seller. Seller hereby
waives all other legal and equitable rights and remedies it may otherwise have
as a result of any breach or default by Buyer under this Agreement. If this
Agreement is terminated without a Closing for any other reason, then the Deposit
and all interest thereon shall be returned to Buyer. Seller and Buyer shall
each instruct the Escrow Agent to disburse the Deposit and all interest thereon
to the party entitled thereto and shall not, by any act or omission, delay or
prevent any such disbursement.
1.6 Allocation and Appraisal. Concurrent with Closing, or, if later,
------------------------
within 90 days thereafter, Buyer and Seller will further allocate the Purchase
Price in accordance with the respective fair market values of the Station Assets
and the goodwill being purchased and sold in a manner consistent with Section
1.4(b) hereof and in accordance with the requirements of Section 1060 of the
Internal Revenue Code of 1986, as amended (the "Code"). Buyer may, at its
election and expense prior to Closing, engage a broadcast property appraisal
company to appraise the Station Assets. In the event Buyer does so, a copy
thereof shall be provided to Seller.
1.7 Adjustments.
-----------
(a) The operation of the Stations and the income and normal operating
expenses attributable thereto through the date preceding the Closing Date (the
"Adjustment Date") shall be for the account of Seller and thereafter for the
account of Buyer, and, if any income or expense is properly allocable or
credited, then it shall be allocated, charged or
-6-
prorated accordingly. Expenses for goods or services received both before and
after the Adjustment Date, power and utilities charges, frequency discounts, and
rents and similar prepaid and deferred items shall be prorated between Seller
and Buyer as of the Adjustment Date in accordance with generally accepted
accounting principles. All special assessments and similar charges or liens
imposed against the Owned Real Property and Tangible Personal Property in
respect of any period of time through the Adjustment Date, whether payable in
installments or otherwise, shall be the responsibility of Seller, and amounts
payable with respect to such special assessments, charges or liens in respect of
any period of time after the Adjustment Date shall be the responsibility of
Buyer, and such charges shall be adjusted accordingly. One-half of the total
amount owing as of the Adjustment Date pursuant to all leases of equipment or
other personal property included in the Station Contracts (including without
limitation for remaining rental payments due, early termination fees, amounts
owing upon termination for purchase of equipment or other personal property
leased or other costs incurred in connection with purchasing such leased
equipment or other personal property free and clear of Liens) shall be the
responsibility of Seller. To the extent that any of the foregoing prorations and
adjustments cannot be determined as of the Closing Date, Buyer and Seller shall
conduct a final accounting and make any further payments, as required on a date
mutually agreed upon, within ninety (90) days after the Closing.
(b) With respect to trade, barter or similar agreements for the sale
of time for goods or services ("Barter Agreements") assumed by Buyer pursuant to
Section 1.1(e), if any, if there exists on the date of assumption an aggregate
negative barter balance (i.e., the amount by which the value of air time (based
upon the Stations' then prevailing rates) to be provided exceeds the fair market
value of goods or services to be received therefor), then, to the extent such
excess is greater than $50,000 in the aggregate for all Stations, it will be
treated as prepaid time sales and adjusted for as a proration in Buyer's favor.
If, however, there exists on such date an aggregate positive barter balance
(i.e., the amount by which the value of air time (based upon the Stations' then
prevailing rates) to be provided is less than the fair market value of goods or
services to be received therefor) with respect to Barter Agreements assumed by
Buyer, there shall be no proration in Seller's favor.
(c) Anything herein to the contrary notwithstanding, all sales
commissions with respect to amounts collected by Seller with respect to the
stations on or prior to the Adjustment Date shall be the responsibility of
Seller and all sales commissions with respect to amounts collected by Buyer
after the Adjustment Date shall be the responsibility of Buyer.
1.8 Closing. The consummation of the sale and purchase of the Station
-------
Assets provided for in this Agreement (the "Closing") shall take place at a date
and time mutually agreed upon by Buyer and Seller after the date of the FCC
Consent pursuant to the FCC's initial order, but in no event later than the
earlier of (a) nine months after the date the FCC gives public notice of the
filing of the FCC Application (defined below) (the "Final Closing Date"), (b)
ten business days after the date the FCC Consent becomes Final, or (c) at
Buyer's election, upon ten days notice after the date the FCC Consent is granted
by initial order, in any case subject to the satisfaction or waiver of the last
of the conditions required to be satisfied or waived pursuant to Articles 6 or 7
below (other than those requiring a delivery of a certificate
-7-
or other document, or the taking of other action, at the Closing).
Alternatively, the Closing may take place at such other place, time or date as
the parties may mutually agree upon in writing. The date on which the Closing is
to occur is referred to herein as the "Closing Date."
1.9 FCC Application.
---------------
(a) As soon as possible (but in no event later than ten business days
after the date of this Agreement) Seller and Buyer shall file an application
with the FCC (the "FCC Application") requesting the FCC's written consent to the
assignment of the FCC Authorizations from Seller to Buyer or, at Buyer's option,
to Buyer's wholly-owned subsidiary Radio One Licenses, Inc., pursuant to this
Agreement. Seller and Buyer shall diligently take all steps that are necessary,
proper or desirable to expedite the prosecution of the FCC Application to a
favorable conclusion. Each party shall promptly provide the other with a copy
of any pleading, order or other document served on it relating to the FCC
Application, shall furnish all information required by the FCC, and shall be
represented at all meetings or hearings scheduled to consider the FCC
Application.
(b) The FCC's written consent to the FCC Application is referred to
herein as the "FCC Consent." For purposes of this Agreement, the term "Final"
shall mean that action shall have been taken by the FCC (including action duly
taken by the FCC's staff, pursuant to delegated authority) which shall not have
been reversed, stayed, enjoined, set aside, annulled or suspended; with respect
to which no timely request for stay, petition for rehearing, appeal or
certiorari or sua sponte action of the FCC with comparable effect shall be
--- ------
pending; and as to which the time for filing any such request, petition, appeal,
certiorari or for the taking of any such sua sponte action by the FCC shall have
--- ------
expired or otherwise terminated.
1.10 Hart-Scott-Rodino. As soon as possible (but in no event later than
-----------------
ten business days after the date of this Agreement), Buyer and Seller shall
prepare and file with the Federal Trade Commission and the United States
Department of Justice any documents that may be necessary to comply with the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") (including
a request for early termination of the waiting period thereunder) and shall
thereafter promptly furnish all materials thereafter requested by such agencies.
1.11 Characterization of Transactions for Tax Purposes. The transactions
-------------------------------------------------
contemplated hereby will be reported for tax purposes as (i) a sale of assets,
in the case of the acquisition of assets from IBL, and as (ii) a reorganization
described in Section 368(a)(1)(C) of the Internal Revenue Code of 1986, as
amended, in the case of the acquisition of assets from Shirk.
-8-
ARTICLE 2: REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
To induce Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller represents and warrants to Buyer as
follows:
2.1 Organization. Seller is duly organized and validly existing under the
------------
laws of the jurisdiction of its organization (as first set forth above). Seller
has the requisite power and authority to own and operate the Stations, to carry
on the Stations' business as now conducted by it, and to execute and deliver
this Agreement and all of the other agreements and instruments to be executed
and delivered Seller pursuant hereto (collectively, the "Seller Ancillary
Agreements"), to consummate the transactions contemplated hereby and thereby and
to comply with the terms, conditions and provisions hereof and thereof.
2.2 Authority. The execution, delivery and performance of this Agreement
---------
and the Seller Ancillary Agreements by Seller have been duly authorized and
approved by all necessary action of Seller and do not require any further
authorization or consent of Seller. This Agreement is, and each Seller
Ancillary Agreement when executed and delivered by Seller and the other parties
thereto will be, a legal, valid and binding agreement of Seller enforceable in
accordance with its respective terms, except in each case as such enforceability
may be limited by bankruptcy, moratorium, insolvency, reorganization or other
similar laws affecting or limiting the enforcement of creditors' rights
generally and except as such enforceability is subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
2.3 No Conflicts. Except as set forth in Schedule 2.3, neither the
------------ ------------
execution and delivery by Seller of this Agreement and the Seller Ancillary
Agreements or the consummation by Seller of any of the transactions contemplated
hereby or thereby nor compliance by Seller with or fulfillment by Seller of the
terms, conditions and provisions hereof or thereof will:
(i) conflict with, result in a breach of the terms, conditions or
provisions of, or constitute a default, an event of default or an event creating
rights of acceleration, termination or cancellation or a loss of rights under,
or result in the creation or imposition of any Lien upon any of the Station
Assets under, the charter or other organizational documents of Seller, or, to
the knowledge of Seller, any contract, lease, agreement or instrument, or any
governmental license, permit or authorization, or any judgment, order, award or
decree to which Seller is a party or any of the Station Assets is subject or by
which Seller is bound, or any statute, other law or regulatory provision
affecting Seller or the Station Assets; or
(ii) require the approval, consent, authorization or act of, or the
making by Seller of any declaration, filing or registration with, any third
party or any foreign, federal, state or local court, governmental or regulatory
authority or body, except for such of the foregoing as are necessary pursuant to
the HSR Act and the Communications Act (defined below).
-9-
2.4 Financial Statements.
--------------------
(a) Seller has furnished Buyer with audited financial statements used
by Seller in the preparation of its federal and state tax returns and copies of
its filed federal and state tax returns for fiscal years 1996, 1997 and 1998 as
well as unaudited monthly financial statements for the period from January 1,
1999 through December 31, 1999. Pursuant to Section 4.2, Seller will, each
month, furnish to Buyer unaudited monthly financial statements for the preceding
calendar month as well as financial statements for the year to date period. In
addition, Seller will deliver financial statements for the comparable month and
year to date period for the previous calendar year. So, for example, on January
30, Seller would deliver financial statements for the following periods: (i)
December, 1999; (ii) January 1, 1999 through December 31, 1999; (iii) December,
1998; and (iv) January 1, 1998 through December 31, 1998. The financial
statements described in the preceding sentences and in Section 4.2 shall be
collectively referred to as "Financial Statements". Except in the case of
interim and monthly financial statements for normal year end adjustments, the
Financial Statements: (x) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved and as compared with prior periods; (y) fairly present Seller's
financial position, income, expenses, assets, liabilities, and the results of
operations of the Stations as of the dates and for the periods indicated; and
(z) properly and fairly disclose and allocate all transactions by or between
Seller and any affiliate. There has been no material adverse change in the
business, assets, properties or condition (financial or otherwise) of the
Stations since the preparation of the most recent annual or monthly Financial
Statement. To the knowledge of Seller, no event has occurred that would make
any Financial Statement misleading in any material respect.
(b) To the knowledge of Seller, except as reflected in the balance
sheets included in the Financial Statements dated December 31, 1999, including
the notes thereto or otherwise disclosed in this Agreement or the schedules
hereto, and except for the current liabilities and obligations incurred in the
ordinary course of business of the Stations (not including for this purpose any
tort-like liabilities or breach of contract) since the date of this most recent
balance sheet, there exist no liabilities or obligations of Seller, contingent
or absolute, matured or unmatured, known or unknown. Since the December 31,
1999 balance sheet: (i) Seller has not made any contract, agreement or
commitment or incurred any obligation or liability (contingent or otherwise),
except in the ordinary course of business and consistent with past business
practices; (ii) there has not been any discharge or satisfaction of any
obligation or liability owed by Seller, which is not in the ordinary course of
business or which is inconsistent with past business practices; (iii) there has
not occurred any sale of or loss or material injury to the business, or any
material adverse change in the business or in the condition (financial or
otherwise) of the Stations; (iv) Seller has operated the business in the
ordinary course; (v) except as set forth in Schedule 2.4(b), Seller has not
---------------
increased the salaries or any other compensation of any of its employees or
agreed to the payment of any substantial bonuses except in the ordinary course
of business consistent with past practices; and (vi) Seller has not entered into
any contract, agreement or transaction with any affiliate. The monthly balance
sheets: (x) have been prepared on a consistent basis throughout the periods
involved and as compared with prior periods; and (y) fairly present Seller's
financial position, income,
-10-
expenses, assets, liabilities, and the results of operations of the Stations as
of the dates and for the periods indicated, subject to year end adjustments
which do not materially affect the operations of Seller.
2.5 Taxes. Seller has, in respect of the Stations' business, filed all
-----
foreign, federal, state, county and local income, excise, property, sales, use,
franchise and other tax returns and reports which are required to have been
filed by it under applicable law and has paid all taxes which have become due
pursuant to such returns or pursuant to any assessments which have become
payable. To the knowledge of Seller, all monies required to be withheld by
Seller from employees of the Stations for income taxes, social security and
other payroll taxes have been collected or withheld, and paid to the appropriate
governmental authorities.
2.6 Station Assets. The Station Assets constitute all the assets used or
--------------
held for use in the business or operation of the Stations. Except as set forth
in Schedule 2.6, Seller has good and marketable title to the Station Assets,
------------
free and clear of Liens, except for Permitted Encumbrances. Upon delivery to
Buyer at Closing of the documents contemplated by Section 8.1(a), Seller will
thereby transfer to Buyer good and marketable title to the Station Assets, free
and clear of Liens, except for Permitted Encumbrances.
2.7 FCC Authorizations.
------------------
(a) Seller is the holder of the FCC Authorizations listed and
described on Schedule 1.1(a). Such FCC Authorizations constitute all of the
---------------
licenses and authorizations required under the Communications Act of 1934, as
amended (the "Communications Act"), or the rules, regulations and policies of
the FCC for, and used in the operation of, the Stations. The FCC Authorizations
are in full force and effect and have not been revoked, suspended, canceled,
rescinded or terminated and have not expired. Except as set forth in Schedule
--------
2.7(a), there is not pending or, to the knowledge of Seller, threatened any
- ------
action by or before the FCC to revoke, suspend, cancel, rescind or modify any of
the FCC Authorizations (other than proceedings to amend FCC rules of general
applicability), and there is not now issued or outstanding or pending or, to the
knowledge of Seller, threatened, by or before the FCC, any order to show cause,
notice of violation, notice of apparent liability, or notice of forfeiture or
complaint against Seller or the Stations. The Stations are operating in
material compliance with the FCC Authorizations, the Communications Act, and the
rules, regulations and policies of the FCC.
(b) All reports and filings required to be filed with, and all
regulatory fees required to be paid to, the FCC by Seller with respect to the
Stations have been timely filed and paid. All such reports and filings are
accurate and complete in all material respects. Seller maintains public files
for the Stations as required by FCC rules. With respect to FCC licenses,
permits and authorizations, Seller is operating only those facilities for which
an appropriate FCC Authorization has been obtained and is in effect, and Seller
is meeting the conditions of each such FCC Authorization in all material
respects.
-11-
(c) Seller is aware of no facts indicating that Seller is not in
material compliance with all requirements of the FCC, the Communications Act, or
any other applicable federal, state and local statutes, regulations and
ordinances. To Seller's knowledge, there are no facts, and Seller has received
no notice or communication, formal or informal, indicating that the FCC is
considering revoking, suspending, canceling, rescinding or terminating any FCC
Authorization.
(d) Except as set forth in Schedule 2.7(d), the operation of the
---------------
Stations does not cause or result in exposure of workers or the general public
to levels of radio frequency radiation in excess of the "Radio Frequency
Protection Guides" recommended in "American National Standard Safety Levels with
Respect to Human Exposure to Radio Frequency Electromagnetic Fields 3 kHz to 300
GHz" (ANSI/IEEE C95.1-1992) issued by the American National Standards Institute,
adopted by the FCC effective October 15, 1997, and described in OET Bulletin No.
65. Renewal of the FCC Authorizations would not constitute a "major action"
within the meaning of Section 1.1301, et seq., of the FCC's rules.
-- ---
(e) Seller has no cable carriage agreements for Station W53AV/W65DW
with cable systems. To the extent must carry rights are available to Station
W53AV/W65DW, Seller has made valid must carry elections or has valid
retransmission consent agreements with each cable system located in the market
in which such Station operates (and all such elections, agreements and systems
are listed on Schedule 2.7(e)), and complete and correct copies of such
---------------
elections and agreements have been provided to Buyer.
(f) Seller has timely made all filings necessary to obtain, protect
and preserve the rights of Station W53AV/W65DW arising out of the FCC's
transition to digital television ("DTV"), including without limitation any
filings necessary for Station W53AV/W65DW to obtain a Class A television
license. Except as listed on Schedule 2.7(f), Station W53AV/W65DW is not
---------------
adversely affected by other DTV facilities, and Seller has not filed at the FCC
a displacement application.
(g) Each communications tower structure used in the operation of the
Stations (whether owned or leased) has been registered under the rules and
regulations of the FCC, and the Federal Aviation Administration has issued a
determination of no hazard to air navigation with respect to each such tower for
which such a determination is required.
2.8 Real Property. Schedule 1.1(c) contains a description of all real
------------- ---------------
property used, held for use, or anticipated to be used or held for use, in the
business or operation of the Stations. Seller has, or has the right to acquire,
good and marketable fee simple title to all owned Real Property ("Owned Real
Property"), including all real property described on Schedule 1.1(c) as owned,
---------------
and including all buildings and other improvements thereon. Schedule 1.1(c)
---------------
lists each lease or similar agreement under which Seller is lessee or licensee
of, or holds, uses or operates, or anticipates that it will hold, use or
operate, any real property in the business or operation of the Stations (the
"Real Property Leases"). The Owned Real Property includes, and the Real
Property Leases provide, sufficient access to the Stations' facilities without
the need to obtain any other access rights. Neither the whole nor any part of
-12-
any Real Property is subject to any pending or, to the knowledge of Seller,
threatened suit for condemnation or other taking by any public authority. All
buildings and other improvements included in the Real Property are in good
operating condition and repair (ordinary wear and tear excepted), and free from
material defect or damage, and, to Seller's knowledge, comply with applicable
zoning, health and safety laws and codes. Seller has delivered to Buyer copies
of all title insurance policies, if any, in its possession that are applicable
to the Real Property. Schedule 1.1(c) contains a description of all Real
---------------
Property anticipated to be used in connection with the Improvement Application
and the WYJZ CP (each defined below), together with a summary of Seller's rights
in and to such Real Property.
2.9 Personal Property. Schedule 1.1(b) contains a list of all machinery,
----------------- ---------------
equipment, vehicles, furniture and other tangible personal property owned by
Seller and used or held for use in the business or operation of the Stations.
Each material item of Tangible Personal Property is in good operating condition
and repair (ordinary wear and tear excepted), is free from material defect or
damage, is functioning in the manner and purposes for which it was intended, and
has been maintained in accordance with industry standards.
2.10 Contracts. Each of the Station Contracts (including without
---------
limitation each of the Real Property Leases) constitutes a valid and binding
obligation of Seller and, to the knowledge of Seller, the other parties thereto
(subject to bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally) and is
in full force and effect and (except as set forth in Schedule 2.3 and except for
------------
those Station Contracts which by their terms will expire prior to the Closing
Date or will be otherwise terminated prior to the Closing Date in accordance
with the provisions hereof) may be transferred to the Buyer pursuant to this
Agreement, in each case without breaching the terms thereof or resulting in the
forfeiture or impairment of any rights thereunder and without the consent,
approval or act of, or the making of any filing with, any other party. Seller
has performed its obligations under each of the Station Contracts, and Seller is
not in, or alleged to be in, breach or default under any of the Station
Contracts, and, to the knowledge of Seller, no other party to any of the Station
Contracts has breached or defaulted thereunder, and to the knowledge of Seller,
no event has occurred and no condition or state of facts exists which, with the
passage of time or the giving of notice or both, would constitute such a default
or breach by Seller or, to the knowledge of Seller, by any such other party.
Complete and correct copies of each of the Station Contracts, together with all
amendments thereto, have been delivered to Buyer by Seller. Except as set forth
in Schedule 2.10, none of the Station Contracts (including without limitation
-------------
the Real Property Leases and Time Sales Agreements) is between Seller and an
affiliate. Any Real Property Leases for which renewal rights, options or
elections exist have been duly and validly renewed as set forth in such leases
and are currently in effect for the renewal terms set forth therein, and no
notice of termination or non-renewal has been received with respect to such
leases.
2.11 Intangible Property. To the knowledge of Seller, Seller has all
-------------------
right, title and interest in and to all Intangible Property necessary to the
conduct of the business and operations of the Stations as presently operated.
Schedule 1.1(f) contains a description of all material Intangible Property.
- ---------------
Seller has received no notice of any claim that any Intangible
-13-
Property or the use thereof conflicts with, or infringes upon, any rights of any
third party (and there is no basis for any such claim of conflict). The Stations
have the sole and exclusive right, or a license, to use the Intangible Property.
To the knowledge of the Seller, no service provided by the Stations or any
programming or other material used, broadcast or disseminated by the Stations
infringes upon any copyright, patent or trademark of any other party.
2.12 Employees. Schedule 2.12 contains a list of all Stations' employees
--------- -------------
and their position and rate of compensation, and a list of all Seller's employee
benefit plans. Seller has delivered to Buyer copies of all Seller's handbooks,
policies and procedures relating to Stations' employees, if any. Seller has
received no notice that it is not in compliance with, and Seller has to its
knowledge complied with, all labor and employment laws, rules and regulations
applicable to the Stations' business, including without limitation those which
relate to prices, wages, hours, discrimination in employment and collective
bargaining. Seller is not liable for any arrears of wages or any taxes or
penalties for failure to comply with any of the foregoing. There is no (i)
unfair labor practice charge or complaint against Seller in respect of the
Stations' business pending or to the knowledge of Seller, threatened before the
National Labor Relations Board, any state labor relations board or any court or
tribunal, or (ii) strike, dispute, request for representation, slowdown or
stoppage pending, or to the knowledge of Seller, threatened in respect of the
Stations' business. Buyer shall have the right, but not the obligation, to
offer employment to any of the Stations' employees concurrent with Closing.
2.13 Compliance with Law. To the knowledge of Seller, Seller has complied
-------------------
with all laws, regulations, rules, writs, injunctions, ordinances, franchises,
decrees or orders of any court or of any foreign, federal, state, municipal or
other governmental authority which are applicable to the Station Assets, the
Stations or the Stations' business. There is no action, suit or proceeding
pending or, to the knowledge of Seller, threatened against Seller in respect of
the Station Assets, the Stations or the Stations' business. To the knowledge of
Seller, there are no claims or investigations pending or threatened against
Seller in respect of the Station Assets, the Stations or the Stations' business.
There is no action, suit or proceeding pending or, to the knowledge of Seller,
threatened against Seller which questions the legality or propriety of the
transactions contemplated by this Agreement.
2.14 Insurance. Seller maintains insurance policies relating to the
---------
Stations bearing the policy numbers, for the terms, with the companies, in the
amounts, providing the general coverage set forth on Schedule 2.14 hereto. All
-------------
of such policies are in full force and effect and Seller is not in default
thereunder. Seller has not received notice from any issuer of any such policies
of its intention to cancel, terminate or refuse to renew any policy issued by
it.
2.15 Environmental. Seller has not and, to the knowledge of Seller, no
-------------
other party has, generated, stored, transported or released (each a "Release")
on, in, from or to the assets or properties of the Stations any hazardous or
toxic substance or waste (including without limitation petroleum products) or
other material regulated under any applicable environmental, health or safety
law (each a "Contaminant"). Neither the Stations nor any of the Station Assets
is subject to any order from or agreement with any governmental authority or
private party respecting (i) any environmental, health or safety law, (ii) any
environmental clean-up,
-14-
removal, prevention or other remedial action or (iii) any obligation or
liability arising from the Release of a Contaminant. Neither the Stations nor
any of the assets or properties of the Stations includes any underground storage
tanks or surface impoundments or any polychlorinated biphenyls. To the knowledge
of Seller, neither the Stations nor any of the assets or properties of the
Stations includes any asbestos containing material. Seller has not received in
respect of the Stations or any assets or properties of the Stations any notice
or claim to the effect that it is or may be liable as a result of the Release of
a Contaminant. To the knowledge of Seller, neither the Stations nor any of their
assets or properties are the subject of any investigation by any governmental
authority with respect to a Release of a Contaminant. Seller has delivered to
Buyer copies of all environmental surveys, analyses and assessments in its
possession relating to any of the Real Property, if any.
2.16 No Finder. No broker, finder or other person is entitled to a
---------
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Seller or any party acting on Seller's behalf.
2.17 Year 2000 Compliance. To the knowledge of Seller, all of the Station
--------------------
Assets (including all systems, machinery, information technology, computer
software and hardware, and other data sensitive technology) are operating
without error or interruption related to date data (meaning data or input that
includes an indication of or reference to a date) and without other problems
commonly referred to as "year 2000 problems."
2.18 Disclosure. With respect to Seller, the Stations and the Station
----------
Assets, to the knowledge of Seller, this Agreement and the Seller Ancillary
Agreements do not and will not contain any untrue statement of material fact or
omit to state a material fact required to made in order to make the statements
herein and therein not misleading in light of the circumstances in which they
are made.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
To induce Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, Buyer represents and warrants to Seller as
follows:
3.1 Organization. Buyer is duly organized, validly existing and in good
------------
standing under the laws of the jurisdiction of its organization (first set forth
above). Buyer has the requisite power and authority to execute and deliver this
Agreement and all of the other agreements and instruments to be executed and
delivered by Buyer (collectively, the "Buyer Ancillary Agreements"), to
consummate the transactions contemplated hereby and thereby and to comply with
the terms, conditions and provisions hereof and thereof.
-15-
3.2 Authority.
---------
(a) The execution, delivery and performance of this Agreement and the
Buyer Ancillary Agreements by Buyer have been duly authorized and approved by
all necessary action of Buyer and do not require any further authorization or
consent of Buyer. This Agreement is, and each Buyer Ancillary Agreement when
executed and delivered by Buyer and the other parties thereto will be, a legal,
valid and binding agreement of Buyer enforceable in accordance with its
respective terms, except in each case as such enforceability may be limited by
bankruptcy, moratorium, insolvency, reorganization or other similar laws
affecting or limiting the enforcement of creditors' rights generally and except
as such enforceability is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(b) Upon issuance of the Stock Consideration at Closing, the shares
comprising the Stock Consideration will be duly authorized, validly issued and
fully paid and non-assessable.
3.3 No Conflicts. Neither the execution and delivery by Buyer of this
------------
Agreement and the Buyer Ancillary Agreements or the consummation by Buyer of any
of the transactions contemplated hereby or thereby nor compliance by Buyer with
or fulfillment by Buyer of the terms, conditions and provisions hereof or
thereof will: (i) conflict with the charter or other organizational documents
of Buyer or any law, regulation, judgment, order or decree to which Buyer is
subject; (ii) require the approval, consent, authorization or act of, or the
making by Buyer of any declaration, filing or registration with, any third party
or any foreign, federal, state or local court, governmental or regulatory
authority or body, except for such of the foregoing as are necessary pursuant to
the HSR Act and the Communications Act; or (iii) cause a breach or default under
any agreement of Buyer that would have a material adverse affect on Buyer's
ability to consummate this Agreement.
3.4 No Finder. No broker, finder or other person is entitled to a
---------
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Buyer or any party acting on Buyer's behalf, except Media Services
Group, whose fee shall be paid by Buyer.
3.5 Qualification. Buyer is qualified under the Communications Act and
-------------
the rules, regulations and policies of the FCC, including those with respect to
multiple ownership/duopoly, to hold the FCC Authorizations and to own and
operate the Stations. To the knowledge of Buyer, there are no facts which would
disqualify Buyer as an assignee of the FCC Authorizations or as the owner and
operator of the Station Assets. No waiver of any FCC rule or policy in effect
as of the date hereof is required for the grant of the application for the
assignment of the FCC authorizations to Buyer.
3.6 Availability of Funds. Buyer has available as of the date hereof
---------------------
sufficient funds to enable it to pay the Deposit as called for herein and it
will have available on the Closing Date sufficient funds to enable it to
consummate the transactions contemplated herein.
-16-
3.7 Litigation. There is no claim, litigation, proceeding or
----------
investigation pending or, to the knowledge of Buyer, threatened, that could
reasonably be expected to materially adversely affect Buyer's ability to perform
its obligations pursuant to this Agreement.
ARTICLE 4: COVENANTS OF SELLER
-------------------
Seller covenants and agrees that from the date hereof until the completion
of the Closing:
4.1 Operation of the Business.
-------------------------
(a) Seller shall: (i) continue to carry on the business of the
Stations and keep their books and accounts, records and files in the usual and
ordinary manner in which the business has been conducted in the past; (ii)
operate the Stations in accordance with the terms of the FCC Authorizations and
in material compliance with the Communications Act, FCC rules, regulations and
policies, and all other applicable laws, rules and regulations, and maintain the
FCC Authorizations in full force and effect and timely file and prosecute any
necessary applications for renewal of the FCC Authorizations; (iii) use
commercially reasonable efforts to (1) preserve the business organization of the
Stations intact, (2) retain substantially as at present the Stations' employees,
consultants and agents, and (3) preserve the goodwill of the Stations'
suppliers, advertisers, customers and others having business relations with it;
(iv) keep all Tangible Personal Property and Real Property in good operating
condition (ordinary wear and tear excepted) and repair and maintain adequate and
usual supplies of inventory, office supplies, spare parts and other materials as
have been customarily maintained in the past; (v) preserve intact the Station
Assets and maintain in effect its current insurance policies with respect to the
Stations and the Station Assets; and (vi) collect the Stations' accounts
receivable only in the ordinary course of business consistent with past
practice. Nothing contained in this Agreement shall give Buyer any right to
control the programming, operations or any other matter relating to the Stations
prior to the Closing, and Seller shall have complete control of the programming,
operations and all other matters relating to the Station up to the Closing.
(b) Notwithstanding Section 4.1(a), Seller shall not, without the
prior written consent of Buyer: (i) sell, lease, transfer, or agree to sell,
lease or transfer, any Station Assets, except for non-material sales or leases
in the ordinary course of business of items which are being replaced by assets
of comparable or superior kind, condition and value; (ii) grant any raises to
employees of the Stations or pay any substantial bonuses, except in the ordinary
course of business and consistent with past practices, or enter into any
contract of employment with any employee or employees of the Stations; (iii)
amend or terminate any existing time sales contracts with respect to the
Stations except in the ordinary course of business; (iv) amend, terminate or, by
any act or omission, breach or default on any of the Station Contracts, or enter
into any contract, lease or agreement with respect to the Stations except those
entered into in the ordinary course of business and with parties other than
affiliates of Seller which have an obligation of no more than $5,000
individually and $50,000 in the aggregate; (v) by any act or omission cause any
representation or warranty set forth in
-17-
Article 2 to become untrue or inaccurate; or (vi) settle, discount or otherwise
reduce the amount receivable in respect of any of the Stations' accounts
receivable, except in the ordinary course of business and consistent with past
practice.
(c) Without limiting the foregoing:
(i) Seller shall continue to diligently prosecute, and at the Closing
shall assign to the Buyer its rights to prosecute, its pending FCC application
to improve the facilities of radio station WBKS(FM) (FCC File No. BPH-980904IE)
(the "Improvement Application"), and shall take no action to dismiss, and shall
vigorously oppose the dismissal of, such application.
(ii) for all FCC applications with respect to the Stations, including
the Improvement Application, Seller shall timely respond to all FCC inquiries,
timely provide Buyer copies of all documents prepared or received by it that
relate thereto, otherwise keep Buyer informed of the status thereof, and consult
with Buyer in advance regarding Seller's actions in connection therewith.
(iii) Seller shall timely make all filings necessary to preserve the
rights of Station W53AV/W65DW arising out of the FCC's transition to DTV,
including without limitation any filings necessary for Station W53AV/W65DW to
obtain a Class A television license. If Station W53AV/W65DW will be adversely
affected by other DTV facilities, prior to Closing Seller shall file and
prosecute at the FCC a displacement application requesting a new channel at
maximum allowable power.
(iv) Seller shall cooperate with Buyer with respect to each of the
foregoing matters in this Section 4.1(c), provide Buyer with copies of all
material items of correspondence relating thereto, and provide Buyer with copies
of all documents, reports, analyses or other items relating thereto requested by
Buyer.
4.2 Reports. Seller shall furnish to Buyer by the 30th day after the end
-------
of each calendar month for such calendar month: (a) monthly Financial Statements
for Seller, and (b) such other reports as Buyer may reasonably request relating
to Seller (except that the Financial Statements for January, 2000 shall be
furnished to Buyer by March 17, 2000). Except for normal year end adjustments,
each of the Financial Statements delivered pursuant to this Section shall have
been prepared in accordance with generally accepted accounting principles
consistently applied during the periods covered (except as disclosed therein).
4.3 Access. Between the date hereof and the Closing Date, Seller shall
------
give Buyer and the officers, employees, accountants, counsel, agents,
consultants and representatives of Buyer reasonable access to all Station
Assets, employees of Seller and the Stations, accounts, books, records, deeds,
title papers, insurance policies, licenses, agreements, contracts, commitments,
records and files of every character, equipment, machinery, fixtures, furniture,
vehicles, notes and accounts payable and receivable of Seller relating to the
Stations, and any other information concerning the affairs of the Stations as
Buyer may reasonably request. It is
-18-
expressly understood that, pursuant to this Section, Buyer, at its expense,
shall be entitled to conduct such inspections and reviews of the Stations, the
Station Assets, and financial records relating to the Stations as Buyer may
desire, so long as the same do not unreasonably interfere with Seller's
operation of the Stations. No inspection or investigation made by or on behalf
of Buyer, or Buyer's failure to make any inspection or investigation, shall
affect Seller's representations, warranties and covenants hereunder or be deemed
to constitute a waiver of any of those representations, warranties and
covenants. Immediately after the date hereof, Seller shall also cooperate, and
shall cause its accountants to cooperate, with Buyer to conduct an audit by
Buyer's independent accountants at Buyer's expense of the Financial Statements
for the Stations for the years 1996, 1997, 1998 and 1999, and Buyer may disclose
such financial statements provided or created hereunder in reports filed by
Buyer with any governmental or regulatory authority, including the Securities
and Exchange Commission. Buyer shall provide copies of any such financial
statements in advance of disclosure and, in the event Seller shall reasonably
object to the contents of such disclosure of its financial statements, Seller
and Buyer shall negotiate in good faith to attempt to agree on the form of such
disclosure, provided that Buyer shall in all events have the right to proceed
with such disclosure in the event an agreement is not reached. Seller
acknowledges that in responding and negotiating as set forth in the previous
sentence, time is of the essence.
4.4 Consents. Seller shall use commercially reasonable efforts to obtain
--------
all of the consents noted on Schedule 2.3 hereto. If Seller does not obtain a
------------
consent required to assign a Station Contract hereunder, Buyer shall not be
required to assume such Station Contract. Marked with an asterisk on Schedule
--------
2.3 are those consents the receipt of which is a condition precedent to Buyer's
- ---
obligation to close under this Agreement (the "Required Consents"). Seller
shall obtain the Required Consents prior to Closing.
4.5 Estoppel Certificates; Title Insurance; Liens. Seller, at Seller's
---------------------------------------------
expense, will obtain and deliver to Buyer: (i) written estoppel certificates
(the "Estoppel Certificates") duly executed by the lessors under the Real
Property Leases, in form and substance satisfactory to Buyer; (ii) commitments
from a title company acceptable to Buyer to issue to Buyer at standard rates
ALTA extended coverage owner's and leasehold title insurance policies with
respect to the owned Real Property and with respect to those parcels of leased
Real Property marked with a dagger (+) on Schedule 1.1(c) with no exceptions
---------------
other than the Liens listed on Schedule 2.6 (all of which shall be discharged
and released by Seller at or before Closing) and Permitted Encumbrances (the
"Title Commitments"); and (iii) an ALTA survey of each parcel of Owned Real
Property satisfactory to cause the removal of any standard exceptions or
conditions to the Title Commitments (the "Surveys"). The Estoppel Certificates
and Surveys shall be dated within fifteen days prior to Closing. The Title
Commitments shall be delivered within thirty days of the date of this Agreement
and shall be updated within fifteen days prior to Closing.
4.6 Environmental. Following the execution of this Agreement, at Buyer's
-------------
expense, Buyer may engage engineering or environmental assessment firms to
perform one or more Phase I, Phase II or other environmental assessments for any
or all of the Real Property (collectively, the "Environmental Assessments").
Seller shall cooperate, and shall use reasonable efforts to ensure that any
lessor or other person in control of any of the Real
-19-
Property shall also cooperate, with Buyer and such firms in performing the
Environmental Assessments. The Environmental Assessments shall initially be
ordered promptly, but not later than thirty (30) days after the date hereof, it
being understood that, so long as the initial Environmental Assessment for a
piece of property has been ordered within such time, any follow-up Environmental
Assessments need not be ordered within such time. Receipt of the Environmental
Assessments shall not relieve Seller of any obligation with respect to any
representation, warranty or covenant of Seller herein or waive any condition to
Buyer's obligations herein. If any Environmental Assessment, including any
follow-up Environmental Assessment, reveals the existence of Environmental
Noncompliance (defined as any condition that renders Section 2.15 hereof untrue,
misleading or inaccurate in any material respect) that can be remedied by the
expenditure of One Million Dollars or less, Seller shall remedy the
Environmental Noncompliance at its expense prior to the Closing and the Closing
will otherwise take place in the manner and at the time provided for herein. In
the event that the cost of remedying the Environmental Noncompliance will exceed
One Million Dollars, Buyer may elect to: (a) proceed with the Closing with a
Purchase Price reduction in the amount of One Million Dollars, any additional
cost of remedying the Environmental Noncompliance to be contributed by Buyer,
and Seller shall have no further liability or obligation to Buyer with respect
thereto, or (b) terminate this Agreement. Nothing in this Section or otherwise
in this Agreement shall be construed as creating any third-party beneficiaries
or any other rights in parties other than the parties hereto.
ARTICLE 5: COVENANTS OF BUYER AND SELLER
-----------------------------
Buyer and Seller covenant and agree that from the date hereof until the
completion of the Closing:
5.1 Representations and Warranties. Each party shall give the other
------------------------------
detailed written notice promptly upon learning of the occurrence of any event
that would cause or constitute a breach (or would have caused a breach had such
event occurred or been known to it prior to the date hereof) of any of its
representations and warranties contained in this Agreement.
5.2 Notice of Proceedings. Each party shall promptly notify the other in
---------------------
writing upon: (a) becoming aware of any order or decree or any complaint
praying for an order or decree restraining or enjoining the consummation of this
Agreement or the transactions contemplated hereunder; or (b) receiving any
notice from any governmental department, court, agency or commission of its
intention (i) to institute an investigation into, or institute a suit or
proceeding to restrain or enjoin, the consummation of this Agreement or such
transactions, or (ii) to nullify or render ineffective this Agreement or such
transactions if consummated.
5.3 WYJZ Tower Construction. Seller shall proceed diligently with
-----------------------
construction of the tower site identified in the Construction Permit issued with
respect to WYJZ-FM (FCC File No. BPH-981113IH) (the "WYJZ CP") consistent with
the budget provided by Seller to Buyer. The cost of such construction shall be
shared equally by Buyer and Seller, provided that Buyer's obligation shall not
exceed $75,000 without its prior written consent.
ARTICLE 6: CONDITIONS TO THE OBLIGATIONS OF SELLER
---------------------------------------
-20-
The obligations of Seller under this Agreement are, at its option, subject
to the fulfillment of the following conditions prior to or on the Closing Date:
6.1 Representations, Warranties and Covenants. Each of the
-----------------------------------------
representations and warranties of Buyer contained in this Agreement shall be
deemed to be made again on and as of the Closing Date and shall then be true and
correct in all material respects, except to the extent changes are permitted or
contemplated pursuant to this Agreement. Buyer shall have performed and
complied in all material respects with each and every covenant and agreement
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date. Buyer shall have furnished Seller with a certificate, dated
the Closing Date and duly executed by an officer of Buyer authorized on behalf
of Buyer to give such a certificate, to the effect that the conditions set forth
in this Section 6.1 have been satisfied.
6.2 Proceedings. Neither Seller nor Buyer shall be subject to any
-----------
restraining order or injunction restraining or prohibiting the consummation of
the transactions contemplated hereby. In the event such a restraining order or
injunction is in effect, this Agreement may not be abandoned by Seller pursuant
to this Section 6.2 prior to the Final Closing Date, but the Closing shall be
delayed during such period. This Agreement may be abandoned after the Final
Closing Date if such restraining order or injunction remains in effect.
6.3 FCC Consent. The FCC Consent shall have been granted by the FCC by
-----------
initial order.
6.4 Hart-Scott-Rodino. If applicable, the waiting period under the HSR
-----------------
Act shall have expired or been terminated.
6.5 Deliveries. Buyer shall have complied with its obligations set forth
----------
in Section 8.2.
ARTICLE 7: CONDITIONS TO THE OBLIGATIONS OF BUYER
--------------------------------------
The obligations of Buyer under this Agreement are, at its option, subject
to the fulfillment of the following conditions prior to or on the Closing Date:
7.1 Representations, Warranties and Covenants. Each of the
-----------------------------------------
representations and warranties of Seller contained in this Agreement shall be
deemed to be made again on and as of the Closing Date and shall then be true and
correct in all material respects except to the extent changes are permitted or
contemplated pursuant to this Agreement. Seller shall have performed and
complied in all material respects with each and every covenant and agreement
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date. Seller shall have furnished Buyer with a certificate, dated
the Closing Date and duly executed by an officer of Seller authorized on behalf
of Seller to give such a certificate, to the effect that the conditions set
forth in this Section 7.1 have been satisfied.
7.2 Proceedings. Neither Seller nor Buyer shall be subject to any
-----------
restraining order
-21-
or injunction restraining or prohibiting the consummation of the transactions
contemplated hereby. In the event such a restraining order or injunction is in
effect, this Agreement may not be abandoned by Buyer pursuant to this Section
7.2 prior to the Final Closing Date, but the Closing shall be delayed during
such period. This Agreement may be abandoned after such date if such restraining
order or injunction remains in effect.
7.3 FCC Consent. The FCC Consent shall have been granted by the FCC by
-----------
Final order, without any conditions materially adverse to Buyer.
7.4 Hart-Scott-Rodino. If applicable, the waiting period under the HSR
-----------------
Act shall have expired or been terminated.
7.5 Deliveries. Seller shall have complied with its obligations set forth
----------
in Section 8.1.
7.6 Required Consents. Seller shall have obtained all of the Required
-----------------
Consents.
7.7 Material Adverse Change. No Station nor any material portion of the
-----------------------
Station Assets shall have suffered a material adverse change since the date
hereof, and there shall have been no changes since the date hereof in the
business, operations, condition (financial or otherwise), properties, assets or
liabilities of Seller, the Stations or any of the Station Assets, except changes
contemplated by this Agreement and changes which are not (either individually or
in the aggregate) materially adverse to the Stations.
7.8 Cash Flow Amount. The Cash Flow Amount determined pursuant to Section
----------------
1.4(e) shall be at least $1,700,000 and the Buyer Audit, if any, shall have been
completed.
ARTICLE 8: ITEMS TO BE DELIVERED AT THE CLOSING
------------------------------------
8.1 Deliveries by Seller. At the Closing, Seller shall deliver to Buyer
--------------------
duly executed by Seller or such other signatory as may be required by the nature
of the document:
(a) bills of sale, certificates of title, endorsements, assignments,
general warranty deeds and other good and reasonably sufficient instruments of
sale, conveyance, transfer and assignment, in form and substance reasonably
satisfactory to Buyer, sufficient to sell, convey, transfer and assign the
Station Assets to Buyer free and clear of Liens (other than Permitted
Encumbrances) and to quiet Buyer's title thereto;
(b) the Required Consents and any other consents obtained by Seller
under Section 4.4;
(c) certified copies of Seller's articles of incorporation, bylaws and
resolutions authorizing the execution, delivery and performance by Seller of
this Agreement, which shall be in full force and effect;
(d) the certificate referred to in Section 7.1;
-22-
(e) the Estoppel Certificates, Title Commitments and Surveys;
(f) the Subscription in the form of Exhibit B hereto; and
---------
(g) a tower site lease in form and substance reasonably satisfactory
to Buyer for the antenna, STL and related transmission equipment at the tower
site identified in the Construction Permit issued with respect to Station
W53AV/W65DW (FCC File No. BPTTL-19981014JB).
8.2 Deliveries by Buyer. At the Closing, Buyer shall deliver to Seller:
-------------------
(a) the Purchase Price, which shall be paid in the manner specified in
Section 1.4;
(b) an instrument or instruments of assumption of the Assumed
Obligations in form and substance reasonably satisfactory to Buyer;
(c) certified copies of Buyer's articles of incorporation, bylaws and
resolutions authorizing the execution, delivery and performance by Buyer of this
Agreement, including without limitation, the due authorization and issuance of
the Stock Consideration, which shall be in full force and effect at the time of
the Closing;
(d) the certificate referred to in Section 6.1; and
(e) the Registration Rights Agreement in the form of Exhibit C hereto.
---------
ARTICLE 9: SURVIVAL; INDEMNIFICATION
-------------------------
9.1 Survival. All representations, warranties, covenants and agreements
--------
contained in this Agreement, or in any certificate, agreement, or other document
or instrument, delivered pursuant hereto, shall survive (and not be affected in
any respect by) the Closing, any investigation conducted by any party hereto and
any information which any party may receive, for a period of twelve (12) months
from the Closing Date and neither party shall have the right to assert a claim
against the other with respect thereto after the expiration of such twelve month
period, provided that: (a) any claim for which written notice has been given
during such twelve month period shall survive until resolved, (b) the following
provisions, and any indemnification obligations relating thereto, shall survive
until the expiration of the applicable statute of limitations: Sections 1.3
(Assumed Obligations and Retained Liabilities), 1.6 (Allocation), 1.7
(Adjustments), 2.1 (Organization), 2.2 (Authority), 2.4 (Financial Statements),
2.8 (Real Property, but only with respect to Seller's title to owned Real
Property and rights in leased Real Property), 3.1 (Organization), 3.2
(Authority), 10.3 (Expenses), and any obligation or liability arising from the
post-Closing operation of the Stations by Buyer (collectively, the "Fundamental
Provisions"), and (c) the Guaranty shall survive as provided in Section 11.9
hereof.
-23-
9.2 Indemnification.
---------------
(a) From and after Closing, Seller (an "Indemnifying Party") hereby
agrees to indemnify and hold harmless Buyer, the shareholders, directors,
officers and employees of Buyer and all persons which directly or indirectly,
through one or more intermediaries, control, are controlled by, or are under
common control with Buyer, and their respective successors and assigns
(collectively, the "Buyer Indemnitees") from, against and in respect of, and to
reimburse the Buyer Indemnitees for, the amount of any and all Deficiencies (as
defined in Section 9.3(a)); provided that, (i) except for the Fundamental
Provisions (which shall not be subject to such limitation), Seller shall have no
liability to Buyer hereunder until Buyer's aggregate Deficiencies exceed
$250,000, provided that, once such amount is exceeded, all such Deficiencies
shall be paid, (ii) the maximum liability of Seller to Buyer for breaches of the
representations and warranties set forth in Section 2.15 shall be $1,000,000,
and (iii) the maximum aggregate liability of Seller hereunder for Deficiencies
shall be $3,000,000.
(b) From and after Closing, Buyer (an "Indemnifying Party") hereby
agrees to indemnify and hold harmless Seller, the shareholders, directors,
officers and employees of Seller and all persons which directly or indirectly,
through one or more intermediaries, control, are controlled by, or are under
common control with Seller, and their respective successors and assigns
(collectively, the "Seller Indemnitees") from, against and in respect of, and to
reimburse the Seller Indemnitees for, the amount of any and all Deficiencies (as
defined in Section 9.3(b)); provided that, (i) except for the Fundamental
Provisions (which shall not be subject to such limitation), Buyer shall have no
liability to Seller hereunder until Seller's aggregate Deficiencies exceed
$250,000, provided that, once such amount is exceeded, all such Deficiencies
shall be paid, and (ii) the maximum aggregate liability of Buyer hereunder for
Deficiencies shall be $3,000,000 (provided that such aggregate liability
limitation shall be increased to $10,000,000 for Deficiencies arising solely
from a breach of Section 3.2(b) hereof).
9.3 Deficiencies.
------------
(a) As used in this Article 9, the term "Deficiencies" when asserted
by Buyer Indemnitees or arising out of a third party claim against Buyer
Indemnitees shall mean any and all losses, damages, liabilities and claims
sustained by the Buyer Indemnitees and arising out of, based upon or resulting
from: (i) any misrepresentation, breach of warranty, or any failure to comply
with any covenant, obligation or agreement on the part of Seller contained in or
made pursuant to this Agreement, including without limitation the Seller
Ancillary Agreements; (ii) any failure by Seller to pay or perform any of the
Retained Liabilities or any other liability or obligation relating to the
operation of the Stations by Seller prior to Closing; or (iii) any litigation,
proceeding or claim by any third party relating to the business or operation of
the Stations prior to Closing. Such Deficiencies include without limitation any
and all acts, suits, proceedings, demands, assessments and judgments, and all
fees, costs and expenses of any kind, related or incident to any of the
foregoing (including, without limitation, any and all Legal Expenses (as defined
in Section 9.6 below)).
-24-
(b) As used in this Article 9, the term "Deficiencies" when asserted
by Seller Indemnitees or arising out of a third party claim against Seller
Indemnitees shall mean any and all losses, damages, liabilities and claims
sustained by the Seller Indemnitees and arising out of, based upon or resulting
from: (i) any misrepresentation, breach of warranty, or any failure to comply
with any covenant, obligation or agreement on the part of Buyer contained in or
made pursuant to this Agreement, including without limitation the Buyer
Ancillary Agreements; (ii) any failure by Buyer to pay or perform any of the
Assumed Obligations or any other liability or obligation relating to the
operation of the Stations by Buyer after Closing; or (iii) any litigation,
proceeding, or claim by any third party relating to the business or operation of
the Stations after Closing. Such Deficiencies include without limitation any
and all acts, suits, proceedings, demands, assessments and judgments, and all
fees, costs and expenses of any kind, related or incident to any of the
foregoing (including, without limitation, any and all Legal Expenses (as defined
in Section 9.6 below)).
9.4 Procedures.
----------
(a) In the event that any claim shall be asserted by any third party
against the Buyer Indemnitees or Seller Indemnitees (Buyer Indemnitees or Seller
Indemnitees, as the case may be, hereinafter, the "Indemnitees"), which, if
sustained, would result in a Deficiency, then the Indemnitees, as promptly as
practicable after learning of such claim, shall notify the Indemnifying Party of
such claim, and shall extend to the Indemnifying Party a reasonable opportunity
to defend against such claim, at the Indemnifying Party's sole expense and
through legal counsel reasonably acceptable to the Indemnitees, provided that
the Indemnifying Party proceeds in good faith, expeditiously and diligently.
The Indemnitees shall, at their option and expense, have the right to
participate in any defense undertaken by the Indemnifying Party with legal
counsel of their own selection at the expense of the Indemnitees. No settlement
or compromise of any claim which may result in a Deficiency may be made by the
Indemnifying Party, without the prior written consent of the Indemnitees,
unless: (A) prior to such settlement or compromise the Indemnifying Party
acknowledges in writing its obligation to pay in full the amount of the
settlement or compromise and all associated expenses; (B) the Indemnitees are
furnished with a full release from the party or parties asserting the claim; and
(C) the Indemnifying Party has the ability (financial or otherwise) to pay or
perform such settlement or compromise. Unless the Indemnifying Party has
elected not to defend against a claim, no settlement or compromise of any claim
which may result in a Deficiency may be made by the Indemnitees without the
prior written consent of the Indemnifying Party, which shall not be unreasonably
withheld, conditioned or delayed. If the Indemnifying Party has elected to
defend against a claim, but the Indemnitee determines in good faith that there
is a reasonable probability that such claim may adversely affect it or its
affiliates other than as a result of monetary damages for which it would be
entitled to indemnification under this Agreement, the Indemnitee may, by notice
to the Indemnifying Party, assume the exclusive right to defend, compromise, or
settle such claim, but the Indemnifying Party will not be bound by any
determination of a claim so defended or any compromise or settlement effected
without its consent, which shall not be unreasonably withheld, conditioned or
delayed.
-25-
(b) In the event that the Indemnitees assert the existence of any
claim for Deficiency against the Indemnifying Party, they shall give written
notice to the Indemnifying Party of the nature and amount of the Deficiency
asserted. The parties agree that all such claims not disputed by the
Indemnifying Party shall be paid in cash by the Indemnifying Party within thirty
(30) days after receiving notice of the claim. "Disputed Claims" shall mean
claims by an Indemnitee which the Indemnifying Party objects to in good faith in
writing within twenty (20) days after receiving notice of the claim. At the
option of the Indemnitees, the Indemnitees may offset any established Deficiency
or any portion thereof that has not been paid by the Indemnifying Party to the
Indemnitees against any obligation the Indemnitees, or any of them, may have to
the Indemnifying Party.
(c) In the event there is a Disputed Claim, the parties shall attempt
for a period of at least 20 days to negotiate in good faith a resolution of such
Disputed Claim, including at least one meeting in person among an executive
officer of Buyer and each Seller. In connection with resolution of such
Disputed Claim, each party shall provide to the other such information,
documents, records, engineering, schematics, compilations, analyses and reports
relating to the Disputed Claim as shall be reasonably requested.
9.5 Legal Expenses. As used in this Article 9, the term "Legal Expenses"
--------------
shall mean any and all fees (whether of attorneys, accountants or other
professionals), costs and expenses of any kind reasonably incurred by any person
identified herein and its counsel in investigating, preparing for, defending
against, or providing evidence, producing documents or taking other action with
respect to any threatened or asserted claim.
ARTICLE 10: MISCELLANEOUS
10.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing: (a) by the mutual consent of Seller and Buyer; (b) by any party hereto
if the FCC has denied the approvals contemplated by this Agreement in an order
which has become Final; (c) by Buyer as provided in Section 1.4(e) (Audit) or
Section 4.6 (Environmental) or Section 10.6 (Broadcast Transmission
Interruption); (d) by Buyer as provided in Section 10.7 (Risk of Loss); (e) by
Buyer or Seller if the Closing has not taken place by the Final Closing Date;
(f) by Buyer, if on the Closing Date Seller has failed to satisfy any of the
conditions set forth in Section 7.1, 7.5, 7.6, 7.7 or 7.8; (g) by Buyer if
Seller has failed to cure a material breach of any of its representations,
warranties or covenants under this Agreement within thirty (30) calendar days
after it receives notice from Buyer of such breach; (h) by Seller, if on the
Closing Date Buyer has failed to satisfy either of the conditions set forth in
Section 6.1 or 6.5; or (i) by Seller if Buyer has failed to cure a material
breach of any of its representations, warranties or covenants under this
Agreement within thirty (30) calendar days after it receives notice from Seller
of such breach. A termination pursuant to this Section 10.1 shall not relieve
any party of any liability it would otherwise have for a breach of this
Agreement.
10.2 Specific Performance. In the event of a breach or threatened breach
--------------------
by Seller of
-26-
any representation, warranty, covenant or agreement under this Agreement, at
Buyer's election, in addition to any other remedy available to it, Buyer shall
be entitled to an injunction restraining any such breach or threatened breach
and, subject to obtaining any requisite approval of the FCC, to enforcement of
this Agreement by a decree of specific performance requiring Seller to fulfill
its obligations under this Agreement, in each case without the necessity of
showing economic loss or other actual damage and without any bond or other
security being required. The remedies provided Buyer in this Agreement shall be
cumulative and shall not preclude the assertion by Buyer of any other rights or
the seeking of any other remedies against Seller.
10.3 Expenses. Each party hereto shall bear all of its expenses incurred
--------
in connection with the transactions contemplated by this Agreement, including
without limitation, accounting and legal fees incurred in connection herewith;
provided, however, that: (i) Seller and Buyer shall each pay one-half of the
FCC filing fees required to be paid in connection with the FCC Application; (ii)
Seller shall be exclusively responsible for, and Buyer shall not have any
liability or responsibility for, any sales or transfer taxes (including without
limitation any real estate transfer taxes), arising from the transfer of the
Station Assets to Buyer; and (iii) the HSR Act filing fee will be paid for by
Buyer.
10.4 Further Assurances. From time to time prior to and after Closing,
------------------
each party hereto will execute all such instruments and take all such actions as
any other party shall reasonably request, without payment of further
consideration, in connection with carrying out and effectuating the intent and
purpose hereof and all transactions contemplated by this Agreement, including
without limitation the execution and delivery of any and all confirmatory and
other instruments in addition to those to be delivered at Closing, and any and
all actions which may reasonably be necessary to complete the transactions
contemplated hereby. The parties shall cooperate fully with each other and with
their respective counsel and accountants in connection with any steps required
to be taken as part of their respective obligations under this Agreement.
10.5 Public Announcements. Prior to Closing, neither party shall, without
--------------------
the approval of the other party hereto, make any press release or other public
announcement concerning the transactions contemplated by this Agreement, except
as is customary for a public company or as and to the extent that such party
shall be so obligated by law, in which case such party shall give advance notice
to the other party. Notwithstanding the foregoing, the parties acknowledge that
the rules and regulations of the FCC require that public notice of the
transactions contemplated by this Agreement be made after the FCC Application
has been filed with the FCC, and that such notice may be broadcast on the
Stations without the advance consent of Buyer.
10.6 Broadcast Transmission Interruption. If before Closing the regular
-----------------------------------
broadcast transmission of any of the Stations in the normal and usual manner is
interrupted for a period of eight consecutive hours or more, Seller shall give
the prompt written notice thereof to Buyer. Buyer shall then have the right, by
giving written notice to Seller, to postpone (and if necessary re-postpone) the
Closing to a date that is fifteen (15) days after the end of any such
-27-
interruption. If regular broadcast transmission in the normal and usual manner
is interrupted for a continuous period of eighteen (18) hours or more at any
time prior to Closing (other than interruptions resulting from the loss of
electrical power due to an act of God including, but not limited to, storms and
lightning which do not exceed an aggregate of 48 hours), then (a) Seller
immediately shall give written notice thereof to Buyer and (b) Buyer shall have
the right, by giving written notice to Seller, to (i) terminate this Agreement,
or (ii) postpone the Closing as provided above.
10.7 Risk of Loss. The risk of loss, damage or destruction to any of the
------------
Station Assets shall be borne by Seller at all times up to 12:01 a.m. local time
on the Closing Date, and it shall be the responsibility of Seller to repair or
cause to be repaired and to restore the property to substantially the
operational and functional condition of such property prior to any such loss,
damage, or destruction. In the event of any such loss, damage, or destruction,
the proceeds of any claim for any loss, payable under any insurance policy with
respect thereto, shall be used to repair, replace, or restore any such property
to its former condition, subject to the conditions stated below. In the event
of any loss or damage to any of the Station Assets, Seller shall notify Buyer
thereof in writing immediately. Such notice shall specify with particularity
the loss or damage incurred, the cause thereof (if known or reasonably
ascertainable), and the insurance coverage. In the event that the property is
not completely repaired, replaced or restored on or before the thirtieth day
after the occurrence of the loss or damage, Buyer at its option: (a) may elect
to postpone Closing (including as needed beyond the Final Closing Date and this
Agreement may not be terminated by Seller pursuant to Section 10.1(e) prior to
the Final Closing Date, but the Closing shall be delayed during such period)
until such time as the property has been completely repaired, replaced or
restored (and, if necessary, Seller shall join Buyer in requesting from the FCC
any extensions of time in which to consummate the Closing that may be required
in order to complete such repairs); or (b) may elect to consummate the Closing
and accept the property in its then condition, in which event Seller shall pay
to Buyer all proceeds of insurance and assign to Buyer the right to any unpaid
proceeds; or (c) terminate this Agreement.
10.8 Cooperation. From the date of Closing and for a period of three (3)
-----------
years thereafter, Seller shall preserve its books and records not included in
the Station Assets and provide Buyer with such cooperation and access thereto as
Buyer shall reasonably request in connection with Buyer's: (i) analysis and
review of Financial Statements or information provided or created hereunder, or
(ii) preparation of any reports or analyses prepared by Buyer. Seller shall
also make its accountants available (at Buyer's expense), including any opinions
and financial statements relating to the Seller, to provide explanations of any
documents or information provided hereunder and to permit disclosure of such
information by Buyer, including disclosure to any governmental authority,
including the Securities and Exchange Commission. In the event the Improvement
Application has not been granted as of the Closing Date, Seller agrees to
cooperate with and assist Buyer at Buyer's expense as reasonably requested in
the prosecution thereof.
ARTICLE 11: GENERAL PROVISIONS
------------------
-28-
11.1 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto, and their respective
representatives, successors and assigns. Seller may not assign any of its
rights or delegate any of its duties hereunder without the prior written consent
of Buyer, and any such attempted assignment or delegation without such consent
shall be void. Buyer may not assign any of its rights or delegate any of its
duties hereunder in whole or in part without Seller's prior written consent and
any such attempted assignment or delegation without Seller's consent will be
null and void; provided, however, that Buyer may assign its rights or delegate
its duties hereunder in whole or in part to any wholly owned subsidiary of
Buyer, including by filing the FCC Application in the name of Radio One
Licenses, Inc. as assignee of the FCC Authorizations, provided, however, that
any such assignment or delegation shall not relieve Buyer of any of its
liabilities or obligations hereunder.
11.2 Amendments; Waivers. The terms, covenants, representations,
-------------------
warranties and conditions of this Agreement may be changed, amended, modified,
waived, or terminated only by a written instrument executed by the party waiving
compliance. The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right of such party at a later date to enforce the same. No waiver by any party
of any condition or the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
11.3 Notices. All notices, requests, demands and other communications
-------
required or permitted under this Agreement shall be in writing (which shall
include notice by telex or facsimile transmission) and shall be deemed to have
been duly made and received when personally served, or when delivered by Federal
Express or a similar overnight courier service, expenses prepaid, or, if sent by
telex, graphic scanning or other facsimile communications equipment, delivered
by such equipment, addressed as follows:
if to Seller: Shirk, Inc.
IBL, L.L.C.
6264 Lapas Trail
Indianapolis, IN 46268
Attn: Bill Shirk Poorman
Facsimile No.: 317-328-3870
and Mays Chemical Company, Inc.
P.O. Box 50915
Indianapolis, IN 46250-0915
Attn: William G. Mays
Facsimile No.: 317-845-8410
with a copy (which shall not constitute notice) to:
-29-
Barnes & Thornburg
1313 Merchants Bank Building
11 South Meridian Street
Indianapolis, IN 46204
Attn: Catherine L. Bridge
Facsimile No.: (317) 231-7344
Richard Hayes, Esq.
8404 Lee's Ridge Road
Warrenton, VA 20186
Facsimile: 202-478-0048
Richard Carr, Esq.
5528 Trent Street
Chevy Chase, MD 20815
Facsimile: 301-718-8407
if to Buyer: Radio One, Inc.
5900 Princess Garden Parkway, Suite 800
Lanham, MD 20706
Attn: Alfred C. Liggins, President
Facsimile No.: (301) 306-9638
with a copy (which shall not constitute notice) to:
Radio One, Inc.
5900 Princess Garden Parkway, Suite 800
Lanham, MD 20706
Attn: Linda J. Eckard, General Counsel
Facsimile No.: (301) 306-9638
and Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006
Attn: Dominic T. Bodensteiner
Facsimile No.: (202) 719-7049
Any party may alter the address to which communications are to be sent by
giving notice of such change of address in conformity with the provisions of
this Section providing for the giving of notice.
11.4 Captions. The captions of Articles and Sections of this Agreement
--------
are for convenience only and shall not control or affect the meaning or
construction of any of the
-30-
provisions of this Agreement.
11.5 Governing Law. This Agreement and all questions relating to its
-------------
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of Indiana, without giving
effect to principles of conflicts of laws.
11.6 Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subject
matter hereof, and supersedes all prior agreements, understandings, inducements
or conditions, express or implied, oral or written, relating to the subject
matter hereof. The express terms hereof control and supersede any course of
performance and/or usage of trade inconsistent with any of the terms hereof.
This Agreement has been prepared by all of the parties hereto, and no inference
of ambiguity against the drafter of a document therefore applies against any
party hereto.
11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
11.8 Interpretation. References herein to Seller shall be construed case
--------------
by case to mean Shirk or IBL or either or both as the context requires to enable
Buyer to obtain the fullest benefit of this Agreement, and Shirk and IBL shall
be jointly and severally liable for all representations, warranties, agreements,
covenants and other obligations arising hereunder.
11.9 Guaranty. William G. Mays and William Shirk Poorman, both
--------
individuals residing in the State of Indiana (collectively the "Guarantors")
hereby jointly and severally guarantee to Buyer the timely payment and
performance in full of Seller's post-Closing indemnification obligations under
this Agreement (the "Guaranteed Obligations"); provided, however that the
aggregate liability of Guarantors under this Section shall not exceed
$3,000,000, the Guaranteed Obligations shall not be subject to an additional
$250,000 minimum as in Section 9.2(a)(i), and the Guarantors' liability under
this Section shall expire on the first anniversary of the Closing Date, provided
that Guarantors' liability with respect to any Guaranteed Obligations for which
notice has been given during such one-year period shall survive until resolved.
Guarantors' obligations hereunder are primary and direct and not conditioned or
contingent upon pursuit of any remedies against Seller, and shall not be limited
or affected by any circumstance that might otherwise limit or affect the
obligations of a surety or guarantor, all of which are waived to the fullest
extent permitted by law. The Guarantors each represent and warrant that they
have and will maintain sufficient personal net worth to pay and perform the
Guaranteed Obligations hereunder.
[SIGNATURE PAGE FOLLOWS]
857808
-31-
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
------------------------------------------
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
BUYER: RADIO ONE, INC.
By: ________________________________
Name:
Title:
SELLER: SHIRK, INC.
By: ________________________________
Name:
Title:
IBL, L.L.C.
By: ________________________________
Name:
Title:
GUARANTORS (as to Section 11.9 only):
______________________________________
William G. Mays, an individual
______________________________________
William Shirk Poorman, an individual
Schedules:
- ---------
1.1(a) FCC Authorizations
1.1(b) Tangible Personal Property
1.1(c) Real Property
1.1(d) Time Sale Contracts
1.1(e) Station Contracts
1.1(f) Intangible Property
1.1(j) Prepaid Items
1.2 Excluded Assets
2.3 Consents
2.4 Financial Statements
2.6 Exceptions to Title
2.7(a),(d),(e) & (f) FCC Matters
2.10 Station Contracts with Affiliates
2.12 Employees
2.14 Insurance Policies
Exhibits:
- --------
Exhibit A Cash Flow Addbacks
Exhibit B Subscription
Exhibit C Registration Rights Agreement