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EXHIBIT 10.3
ASSET PURCHASE AGREEMENT
by and among
POINT COMMUNICATIONS LIMITED PARTNERSHIP
MIDCONTINENT BROADCASTING CO. OF WISCONSIN, INC.
MADISON RADIO GROUP
AND
POINT MADISON ACQUISITION COMPANY, INC.,
dated as of
January 27, 1997
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
1.1. Defined Terms.............................................. 2
1.2. References and Titles......................................11
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1. Agreement to Sell and Buy..................................12
2.2. Excluded Assets............................................13
2.3. Purchase Price.............................................14
2.4. Adjustments and Prorations.................................14
2.5. Assumption of Liabilities and Obligations..................15
2.6. Allocation.................................................16
2.7. Earnest Money..............................................16
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING SELLER
3.1. Representations and Warranties Regarding Seller............16
3.2. Representations and Warranties of Buyer....................27
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1. Covenants of the Selling Group.............................28
4.2. Negative Trade Balance.....................................30
4.3. Environmental Site Assessments.............................30
4.4 Relocation of Operations...................................30
ARTICLE V
ADDITIONAL AGREEMENTS OF THE SELLING GROUP
5.1. No Solicitation of Transactions............................31
5.2. Access and Information.....................................31
5.3. Assistance.................................................32
5.4. Compliance With Station Licenses...........................33
5.5. Notification of Certain Matters............................33
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5.6. Third Party Consents.......................................34
5.7. Richard P. Verne Consulting Agreement......................34
5.8. Confidential Information...................................34
ARTICLE VI
COVENANTS OF BUYER
6.1. Notification of Certain Matters............................34
6.2. Employee Matters...........................................35
ARTICLE VII
MUTUAL COVENANTS
7.1. Application for FCC Consents...............................35
7.2. Control of Stations........................................35
7.3. Other Governmental Consents................................35
7.4. Accounts Receivable........................................36
7.5. Brokers or Finders.........................................36
7.6. Bulk Sales Law.............................................36
7.7. Risk of Loss...............................................37
7.8. Additional Agreements......................................37
ARTICLE VIII
CONDITIONS PRECEDENT
8.1. Conditions to Each Party's Obligation......................38
8.2. Conditions to Obligation of Buyer..........................38
8.3. Conditions to Obligations of the Seller....................39
ARTICLE IX
CLOSING
9.1. Closing....................................................40
9.2. Actions to Occur at Closing................................41
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1. Termination................................................44
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10.2. Effect of Termination......................................45
ARTICLE XI
INDEMNIFICATION
11.1. Indemnification of Buyer...................................46
11.2. Indemnification of the Selling Group and the Shareholders..46
11.3. Defense of Third-Party Claims..............................46
11.4. Direct Claims..............................................47
11.5. Escrow.....................................................47
11.6. Limitations on Indemnified Representation Costs............48
11.7. Instructions to Escrow Agent...............................48
ARTICLE XII
GENERAL PROVISIONS
12.1. Survival of Representations, Warranties, and Covenants.....49
12.2. Further Actions............................................49
12.3. Amendment and Modification.................................49
12.4. Waiver of Compliance.......................................49
12.5. Specific Performance.......................................49
12.6. Severability...............................................49
12.7. Expenses and Obligations...................................50
12.8. Parties in Interest........................................50
12.9. Notices....................................................50
12.10. Counterparts...............................................52
12.11. Entire Agreement...........................................52
12.12. Governing Law..............................................52
12.13. Public Announcements.......................................52
12.14. Assignment.................................................52
12.15. Director and Officer Liability.............................53
12.16. No Reversionary Interest...................................53
12.17. No Waiver Relating to Claims for Fraud.....................53
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EXHIBITS:
Exhibit A -- Deposit Escrow Agreement
Exhibit B -- Form of Consulting Agreement
Exhibit C -- Form of Indemnification Escrow Agreement
Exhibit D -- Form of Bill of Sale and Assignment
Exhibit E -- Form of Assumption Agreement
Exhibit F -- Form of Opinion of Vinson & Elkins L.L.P.
Exhibit G -- Form of Opinion of Stroock & Stroock & Lavan
Exhibit H -- Form of Opinion of Schwartz, Woods & Miller
Exhibit I -- Form of Opinion of Leonard, Street and Deinard
Exhibit J -- Form of Non-Competition Agreement
Exhibit K -- Form of Release of Claims
SCHEDULES:
Schedule 2.1(j) -- Choses in Action
Schedule 2.2(h) -- Excluded Assets
Schedule 2.5(b) -- Trade Deals
Schedule 3.1(a) -- Qualification to do Business and Good Standing
Schedule 3.1(f) -- Unrecorded Liabilities and Conduct of Business
Schedule 3.1(g) -- Licenses and Permits
Schedule 3.1(h) -- Litigation
Schedule 3.1(i) -- Insurance
Schedule 3.1(j) -- Real Estate
Schedule 3.1(k) -- Personal Property
Schedule 3.1(m) -- Environmental Matters
Schedule 3.1(o) -- Certain Agreements
Schedule 3.1(p) -- Employee Benefit Plans; Labor
Schedule 3.1(q) -- Intellectual Property
Schedule 3.1(r) -- Affiliate Relationships
Schedule 4.1(c) -- Change of Format
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of January 27, 1997, by and among Point Communications Limited
Partnership, a Delaware limited partnership ("Point"), Midcontinent
Broadcasting Co. of Wisconsin, Inc., a Wisconsin corporation ("Midcontinent"),
Madison Radio Group, a Wisconsin general partnership whose partners are Point
and Midcontinent ("Seller"), and Point Madison Acquisition Company, Inc., a
Delaware corporation ("Buyer").
R E C I T A L S
A. Seller is the current licensee of and currently owns and
operates radio stations WIBA-AM and WIBA-FM located in Madison, Wisconsin and
WMAD-FM located in Sun Prairie, Wisconsin (collectively, the "Point Stations")
pursuant to licenses issued by the Federal Communication Commission (the
"FCC"). Seller is also the licensee of and owns and operates radio stations
WTSO-AM and WZEE-FM located in Madison, Wisconsin and WMLI-FM located in Sauk
City, Wisconsin (collectively, the "Midcontinent Stations") pursuant to
licenses issued by the FCC. Each of the Point Stations and the Midcontinent
Stations is referred to individually herein as a "Station" and collectively as
the "Stations".
B. Point and Midcontinent have organized Seller for purposes of
holding all of the assets and liabilities related to the Stations.
C. Prior to January 2, 1997, Point and Midcontinent were the
respective licensee, owner and operator of the Point Stations and the
Midcontinent Stations.
D. On January 2, 1977, Point and Midcontinent contributed
substantially all of the assets and liabilities related to each of the Stations
to Seller in exchange for their respective partnership interests therein.
E. Point and Midcontinent desire Seller to sell and Buyer desires
to buy substantially all the assets used or held for use in the operation of
each of the Stations, both tangible and intangible, excluding the Excluded
Assets (as hereinafter defined), and by so doing to acquire the radio broadcast
business presently conducted by each of the Stations, upon the terms and
conditions hereinafter set forth.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the respective representations,
warranties, agreements, and conditions hereinafter set forth, and other good
and valuable consideration, the sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
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ARTICLE I
DEFINED TERMS
1.1. Defined Terms. The following terms shall have the following
meanings in this Agreement:
"Accounts Receivable" means the rights of any member of the
Selling Group to cash payment for the sale of advertising time by each Station
prior to 11:59 p.m. on the day prior to the Closing Date.
"Affiliate" means, with respect to any person, any other
person controlling, controlled by or under common control with such person. For
purposes of this definition and this Agreement, the term "control" (and
correlative terms) means the power, whether by contract, equity ownership or
otherwise, to direct the policies or management of a person.
"Applicable Laws" means all laws, statutes, rules,
regulations, ordinances, judgments, orders, decrees, injunctions, and writs of
any Governmental Entity having jurisdiction over any of the Assets or the
business or operations of any Station, as may be in effect on or prior to the
Closing.
"Applications" has the meaning set forth in Section 7.1.
"Assets" means all the tangible and intangible assets owned,
leased, or licensed by any member of the Selling Group that are used or held
for use in connection with the business or operations of any of the Stations,
whether or not reflected on the Financial Statements or Balance Sheet of any
member of the Selling Group, but specifically excluding therefrom the Excluded
Assets.
"Assumed Contracts" means (a) those Contracts set forth on
Schedule 3.1(o) identified as being assumed by Buyer, (b) all other non-trade
advertising Contracts for cash entered into by Seller for any of the Stations
prior to the date of this Agreement and which are terminable on not more than
30 days notice, (c) all Contracts entered into by Seller on or after the date
of this Agreement and before the Closing not in contravention of the applicable
provisions of Section 4.1, and (d) Trade Deals described in Section 2.5(b).
"Assumption Agreement" means the Assumption Agreement between
Buyer and Seller substantially in the form of Exhibit E.
"Balance Sheets" has the meaning set forth in Section 3.1(f).
"Balance Sheet Date" has the meaning set forth in Section
3.1(f).
"Banking Event" has the meaning set forth in Section 9.1.
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"Bill of Sale and Assignment" means the Bill of Sale and
Assignment between Buyer and Seller substantially in the form of Exhibit D.
"Business Day" means any other day than (i) a Saturday or
Sunday or (ii) a day on which commercial banks in New York, New York or Dallas,
Texas are authorized or required to be closed.
"Buyer" has the meaning set forth in the first paragraph of
this Agreement, and it includes its permitted successors and assigns.
"Buyer Indemnified Costs" means (a) any and all damages,
losses, claims, liabilities, demands, charges, suits, penalties, costs, and
expenses (including court costs and reasonable attorneys' fees and expenses
incurred in investigating and preparing for any litigation or proceeding) that
any of the Buyer Indemnified Parties incur and that arise out of any breach or
default by any member of the Selling Group of (i) any of the representations or
warranties under this Agreement or any agreement or document executed in
connection herewith (collectively, "Buyer Indemnified Representation Costs") or
(ii) any covenant or agreement under this Agreement or any agreement or
document executed in connection herewith; (b) any and all obligations or
liabilities of any member of the Selling Group not expressly assumed by Buyer
pursuant to the terms hereof; (c) any and all losses, liabilities, or damages
incurred by any of the Buyer Indemnified Parties resulting from operation or
control of any of the Stations prior to the Closing Date, including any and all
liabilities arising under the Licenses or the Assumed Contracts which relate to
events occurring prior to the Closing Date; (d) the items indemnified against
pursuant to Section 7.6; and (e) any and all actions, suits, proceedings,
claims, demands, assessments, judgments, costs, and expenses, including
reasonable legal fees and expenses, incident to any of the foregoing.
"Buyer Indemnified Parties" means Buyer and each officer,
director, employee, consultant, stockholder, and Affiliate of Buyer.
"CERCLA" has the meaning set forth in the definition of
Environmental Laws contained in this Section 1.1
"CERCLIS" has the meaning set forth in Section 3.1(m).
"Cessation Date" has the meaning set forth in Section 9.1.
"Choses in Action" means a right to receive or recover
property, debt, or damages on a cause of action, whether pending or not and
whether arising in contract, tort or otherwise. The term shall include rights
to indemnification, damages for breach of warranty or any other event or
circumstance, judgments, settlements, and proceeds from judgments or
settlements.
"Closing" means the consummation of the transactions
contemplated by this Agreement in accordance with the provisions of Article IX.
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"Closing Date" means the date of the Closing.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended. All references to the Code, U.S. Treasury regulations or
other governmental pronouncements shall be deemed to include references to any
applicable successor regulations or amending pronouncement.
"Commencement Date" has the meaning set forth in Section
3.1(m).
"Communications Act" has the meaning set forth in Section
3.1(g).
"Company Reports" has the meaning set forth in Section 3.1(f).
"Confidential Information" has the meaning set forth in
Section 5.8.
"Conflict Event" has the meaning set forth in Section 9.1.
"Consents" means (a) all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any
Governmental Entity, including the FCC Consents, and (b) all consents and
approvals of third parties, in each case that are necessary in order to
transfer the Assets to Buyer and otherwise to consummate the transactions
contemplated hereby.
"Consulting Agreement" means the Consulting Agreement between
Buyer and Richard P. Verne substantially in the form attached hereto as Exhibit
B.
"Contracts" means all agreements, contracts or other binding
arrangements, written or oral (including any amendments and other modifications
thereto), to which any member of the Selling Group is a party or is otherwise
bound and which affect or relate to the Assets or the business or operations of
any of the Stations.
"Cure Period" has the meaning set forth in Section 10.1(b).
"Deferral Notice" has the meaning set forth in Section 9.1.
"Deposit Escrow Agreement" means the Deposit Escrow Agreement
among Seller, Buyer and Escrow Agent, a copy of which is attached hereto as
Exhibit A .
"Deposit Letter of Credit" means (a) during any period in
which the Original Deposit Letter of Credit is held under the Deposit Escrow
Agreement, the Original Deposit Letter of Credit, and (b) during any period in
which the Substitute Deposit Letter of Credit is held under the Deposit Escrow
Agreement, the Substitute Deposit Letter of Credit.
"Election Date" has the meaning set forth in Section 9.1.
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"Employee Benefit Plans" means any "employee benefit plan"
within the meaning of Section 3(3) of ERISA and any bonus, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, vacation, severance, disability, death
benefit, hospitalization or insurance plan providing benefits to any present or
former employee or contractor of Seller or any member of the ERISA Group
maintained by any such entity or as to which any such entity has any liability
or obligation.
"Employee Pension Benefit Plans" has the meaning set forth in
Section 3(2)of ERISA.
"Environmental Costs or Liabilities" means any losses,
liabilities, obligations, damages, fines, penalties, judgments, settlements,
actions, claims, costs and expenses (including reasonable fees, disbursements
and expenses of legal counsel, experts, engineers and consultants, and the
costs of investigation or feasibility studies and the performance of remedial
or removal actions and cleanup activities) in connection with (1) Environmental
Laws, (2) any order of, or contract of any member of the Selling Group with,
any Governmental Entity or any private or public persons relating to or arising
from Environmental Laws, or (3) any exposure of any person or property to
Hazardous Substances
"Environmental Laws" means all Applicable Laws and rules of
common law pertaining to the environment, natural resources, and public or
employee health and safety including the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. ss. 9601 et seq.) ("CERCLA"), the
Emergency Planning and Community Right to Know Act, the Superfund Amendments
and Reauthorization Act of 1986, the Resource Conservation and Recovery Act,
the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act, the
Clean Water Act, the Toxic Substances Control Act, the Safe Drinking Water Act,
the Occupational Safety and Health Act of 1970, the Oil Pollution Act of 1990,
the Hazardous Materials Transportation Act, and any similar or analogous
statutes, regulations and decisional law of any Governmental Entity, as each of
the foregoing may be amended and in effect on or prior to the Closing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Group" means any member of the Selling Group and any
other trades or businesses under common control within the meaning of Section
4001(b)(i) of ERISA with any member of the Selling Group.
"ESA" has the meaning set forth in Section 4.3.
"Escrow Agent" means Citibank, N.A. and includes its
successors and assigns.
"Event Date" has the meaning set forth in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
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"Excluded Assets" has the meaning set forth in Section 2.2.
"FCC" has the meaning set forth in the first recital hereto.
"FCC Consents" means actions by the FCC granting its consent
to the assignment of the FCC Licenses for each of the Stations to Buyer as
contemplated by this Agreement.
"FCC Licenses" means all of the licenses, permits, and other
authorizations issued by the FCC to any member of the Selling Group and
applications of any member of the Selling Group, if any, to the FCC relating to
or used in the business or operations of any of the Stations, including those
listed on Schedule 3.1(g), with any additions thereto between the date hereof
and the Closing Date.
"Final Order" means written action or order issued by the FCC
setting forth the FCC Consents (without the inclusion of any adverse conditions
affecting Buyer's operation or ownership of any Station) and (a) which has not
been reversed, stayed, enjoined, set aside, annulled, or suspended and (b) with
respect to which (i) no requests have been filed for administrative or judicial
review, reconsideration, appeal, or stay, and the time for filing any such
requests and for the FCC to set aside the action on its own motion has expired
or (ii) in the event of review, reconsideration, or appeal, such review,
reconsideration, or appeal has been denied and the time for further review,
reconsideration, or appeal has expired.
"Financial Statements"has the meaning set forth in Section
3.1(f).
"GAAP" means generally accepted accounting principles in the
United States.
"Governmental Entity" means any governmental department,
commission, board, bureau, agency, court or other instrumentality of the United
States or any state, county, parish or municipality, jurisdiction, or other
political subdivision thereof.
"Hazardous Substances" has the meaning set forth in Section
3.1(m).
"Holdback Amount" has the meaning set forth in Section 11.5.
"HSR Act" has the meaning set forth in Section 3.1(e).
"Indemnification Escrow Agreement" means the Indemnification
Escrow Agreement among Seller, Buyer, and Escrow Agent substantially in the
form attached hereto as Exhibit C.
"Indemnified Costs" means the Buyer Indemnified Costs or the
Seller Indemnified Costs, as the case may be.
"Indemnified Parties" means the Buyer Indemnified Parties or
the Seller Indemnified Parties, as the case may be.
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"Indemnified Representation Costs" means the Buyer
Indemnified Representation Costs or the Seller Indemnified Representation
Costs, as the case may be.
"Indemnifying Party" means any person who is obligated to
provide indemnification hereunder.
"Intellectual Property" means all Trademarks, Know-how,
copyrights, copyright registrations and applications for registration, Patents
and all other intellectual property rights whether registered or not, licensed
to or owned by any member of the Selling Group relating to the business or
operations of any Station, including the call letters of each of the Stations
and the goodwill related to the foregoing.
"Know-how" means all plans, ideas, concepts and data,
research records, all promotional literature, customer and supplier lists and
similar data and information, and all other confidential or proprietary
technical and business information.
"Knowledge" means, with respect to a specified party hereto,
the actual knowledge of such party, together with such additional knowledge as
would be gained by a reasonable person upon conducting reasonable and diligent
inquiry concerning the subject matter in question. "Knowledge of the Selling
Group" means the collective Knowledge of all the members of the Selling Group.
"Leased Real Property" means all of any member of the Selling
Group's leasehold interests, easements, licenses, rights to access and
rights-of-way which are used or held for use in the business and operations of
any Station, including those interests which are identified and described in
Schedule 3.1(j), as modified by any addition or permitted deletion thereto
between the date hereof and the Closing Date.
"Licenses" means the FCC Licenses and all other Permits
issued by any Governmental Entity to any member of the Selling Group relating
to or used or held for use in the business and operations of any Station,
including those listed on Schedule 3.1(g), with any additions thereto between
the date hereof and the Closing Date.
"Liens" has the meaning set forth in Section 3.1(l).
"Material Adverse Effect" means a material adverse effect on
the business, operations, properties, condition (financial or otherwise),
results of operations, assets, liabilities, or prospects of Seller other than
effects attributable to general or industry-wide economic, financial or
political conditions.
"Midcontinent" has the meaning set forth in the first
paragraph of this Agreement.
"Midcontinent Balance Sheet" has the meaning set forth in
Section 3.1(f).
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"Midcontinent Stations" has the meaning set forth in the
first recital hereto.
"Minimum Loss" has the meaning set forth in Section 11.6(a).
"Multiemployer Plan" has the meaning set forth in Section
3(37) or Section 4001(a)(3) of ERISA.
"Non-Competition Agreement" means the Non-Competition
Agreement between Point, Mid Continent, Buyer and Seller substantially in the
form of Exhibit J.
"NPL" has the meaning set forth in Section 3.1(m).
"Organizational Documents" has the meaning set forth in
Section 3.1(a).
"Original Deposit Letter of Credit" means the certain
original, irrevocable letter of credit in favor of Seller and the Escrow Agent
issued by Bankers Trust Company for the sum of $1,900,000, and held in
accordance with the provisions of the Deposit Escrow Agreement, and any
substitute letter of credit issued in that amount in accordance with Section 4
of the Deposit Escrow Agreement.
"Owned Real Property" means certain parcels of real property
owned in fee and used or held for use by any member of the Selling Group as
described in Schedule 3.1(j), and all buildings, structures, improvements, and
fixtures thereon, together with all rights of way, easements, privileges, and
appurtenances pertaining or belonging thereto, including any right, title, and
interest of any member of the Selling Group in and to any street adjoining any
portion of such property.
"Patents" means all patent and patent applications (including
all reissues, divisions, continuations, continuations-in-part, renewals, and
extensions of the foregoing) owned by any member of the Selling Group.
"Permits" has the meaning set forth in Section 3.1(m).
"Permitted Encumbrances" means (a) statutory liens for
current Taxes not yet due and payable, (b) in the case of leases of real
property, agreements with, and/or conditions imposed on the issuance of land
use permits, zoning, business licenses, use permits, or other entitlements of
various types issued by, any Governmental Entity, necessary or beneficial to
the continued use and occupancy of the Assets or the continuation of the
operation of any Station, (c) mechanics', carriers', workers', repairers', and
other similar liens imposed by law arising or incurred in the ordinary course
of business for obligations not yet due, (d) in the case of leases of vehicles,
rolling stock, and other personal property, encumbrances, which do not,
individually or in the aggregate, materially impair the operation of the
business at the facility at which such leased equipment or other personal
property is located, (e) purchase money liens arising in the ordinary course of
business and (f) other liens, charges or encumbrances incidental to the
operation of the Stations or the ownership of the Assets which were not
incurred in connection with the borrowing of money or the advance of credit
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and which, in the aggregate, do not materially detract from the value of the
Assets or materially interfere with the use thereof or the operation of the
Stations.
"Permitted Liens" has the meaning set forth in Section
3.1(l).
"Person" means an individual, corporation, partnership,
association, trust, unincorporated organization, or other entity.
"Personal Property" means all of the machinery, equipment
(including transmitter and studio equipment), computer programs, computer
software, tools, motor vehicles, furniture, leasehold improvements, office
equipment, inventories, supplies, plant, spare parts, and other tangible or
intangible personal property which are owned or leased by any member of the
Selling Group for any Station and which are used or held for use in the
business or operations of any Station, including the personal property which is
listed on Schedule 3.1(k) hereto, together with any additions thereto between
the date hereof and the Closing Date less any dispositions made in accordance
with Section 4.1. The term Personal Property shall not include any of the
Excluded Assets.
"Point" has the meaning set forth in the first paragraph of
this Agreement.
"Point Balance Sheet" has the meaning set forth in Section
3.1(f).
"Point Stations" has the meaning set forth in the first
recital hereto.
"Purchase Price" means the consideration payable by Buyer to
Seller as provided in Section 2.3 hereof.
"Real Property" means the Leased Real Property and the Owned
Real Property.
"Release" means the Release of Claims among Buyer and the
Selling Group substantially in the form of Exhibit K.
"Released Claims" has the meaning set forth in Section
10.2(b).
"Released Parties" has the meaning set forth in Section
10.2(b).
"Schedules" means the Schedules attached hereto.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Seller" has the meaning set forth in the first paragraph of
this Agreement.
"Seller Indemnified Costs" means: (a) any and all damages,
losses, claims, liabilities, demands, charges, suits, penalties, costs, and
expenses (including court costs and reasonable
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attorneys' fees and expenses incurred in investigating and preparing for any
litigation or proceeding) which any of the Seller Indemnified Parties incur and
which arise out of any breach or default by Buyer of (i) any of the
representations or warranties under this Agreement or any agreement or document
executed in connection herewith (collectively, "Seller Indemnified
Representation Costs") or (ii) any covenant or agreement under this Agreement
or any agreement or document executed in connection herewith; (b) any and all
losses, liabilities, or damages incurred by any of the Seller Indemnified
Parties resulting from Buyer's operation or control of the Stations on and
after the Closing Date, including any and all liabilities arising under the
Licenses or the Assumed Contracts which relate to events occurring after the
Closing Date; (c) the items indemnified against pursuant to Section 5.3; and
(d) any and all actions, suits, proceedings, claims, demands, assessments,
judgments, costs, and expenses, including reasonable legal fees and expenses,
incident to any of the foregoing.
"Seller Indemnified Parties" shall mean each member of the
Selling Group and each officer, director, employee, consultant, partner, and
Affiliate of each member of the Selling Group.
"Seller Negative Trade Balance" has the meaning set forth in
Section 4.2.
"Selling Group" shall mean Point, Midcontinent and Seller.
"Sites" has the meaning set forth in Section 3.1(m).
"Station or Stations" has the meaning set forth in the first
recital hereto.
"Station Event" has the meaning set forth in Section 9.1.
"Station Licenses" has the meaning set forth in Section
3.1(g).
"Station Management" has the meaning set forth in Section
4.1(b).
"Substitute Deposit Letter of Credit" means that certain
original, irrevocable letter of credit in favor of Seller and the Escrow Agent
issued by Bankers Trust Company or another lender reasonably acceptable to
Seller for the sum of $3,150,000 and held in accordance with the provisions of
the Deposit Escrow Agreement, and any substitute letter of credit issued in
that amount in accordance with Section 4 of the Deposit Escrow Agreement. An
increase in the amount of the Original Deposit Letter of Credit to $3,150,000
shall constitute the issuance of a Substitute Deposit Letter of Credit.
"Target Closing Date" has the meaning set forth in Section
9.1.
"Taxes" means taxes, charges, fees, imposts, levies,
interest, penalties, additions to tax or other assessments or fees of any kind,
including, but not limited to, income, corporate, capital, excise, property,
sales, use, turnover, value added and franchise taxes, deductions, withholdings
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and customs duties, imposed by any Governmental Entity and any payments with
respect thereto required under any tax-sharing agreement.
"Tax Returns" means any return, report, information return or
other document (including any related or supporting information) filed or
required to be filed with any Governmental Entity in connection with the
determination, assessment, collection or administration of any Taxes or the
administration of any laws, regulations or administrative requirements relating
to any Taxes.
"Title Commitment" means the commitment to issue an owner's
title policy as provided in Section 8.2(e).
"Title Company" means First American Title Insurance Company
or such other title insurance company reasonably acceptable to Buyer.
"Title Policy" has the meaning set forth in Section 8.2(e).
"Trade Deals" means the exchanges by a Station of its
advertising time for goods or services, other than in connection with the
licensing of programs and programming material.
"Trademarks" means (a) trademarks, service marks, trade
names, trade dress, labels, logos, and all other names and slogans associated
with any products or embodying the goodwill of the business of any Station,
whether or not registered, and any applications or registrations therefor
(excluding marks, registered or unregistered, bearing the name "Midcontinent,"
"Midco," "M," "Point," "Point Communications" or marks of similar import) and
(b) any associated goodwill incident thereto owned by any member of the Selling
Group.
"Trading Event" has the meaning set forth in Section 9.1.
"Transaction Documents" has the meaning set forth in Section
3.1(d).
"Voting Debt" has the meaning set forth in Section 3.1(c).
"Warranty Deed" means a Wisconsin general warranty deed in
form and substance acceptable to the Buyer and the Title Company pursuant to
which Seller conveys to Buyer the Owned Real Property at the Closing.
"WIBA Building" has the meaning set forth in Section 4.4.
1.2. References and Titles. All references in this Agreement to
Exhibits, Schedules, Articles, Sections, subsections, and other subdivisions
refer to the corresponding Exhibits, Schedules, Articles, Sections,
subsections, and other subdivisions of this Agreement unless expressly provided
otherwise. Titles appearing at the beginning of any Articles, Sections,
subsections, or other subdivisions of this Agreement are for convenience only,
do not constitute any part of such Articles, Sections, subsections or other
subdivisions, and shall be disregarded in construing the language
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contained therein. The words "this Agreement," "herein," "hereby," "hereunder,"
and "hereof," and words of similar import, refer to this Agreement as a whole
and not to any particular subdivision unless expressly so limited. The words
"this Section," "this subsection," and words of similar import, refer only to
the Sections or subsections hereof in which such words occur. The word "or" is
not exclusive, and the word "including" (in its various forms) means "including
without limitation." Pronouns in masculine, feminine, or neuter genders shall
be construed to state and include any other gender, and words, terms, and
titles (including terms defined herein) in the singular form shall be construed
to include the plural and vice versa, unless the context otherwise expressly
requires. Unless the context otherwise requires, all defined terms contained
herein shall include the singular and plural and the conjunctive and
disjunctive forms of such defined terms.
ARTICLE II
SALE AND PURCHASE OF ASSETS
2.1. Agreement to Sell and Buy. Subject to the terms and
conditions set forth in this Agreement, Seller shall sell, assign, transfer and
deliver to Buyer on the Closing Date, and Buyer shall purchase on the Closing
Date, all of the Assets, free and clear of any Liens or liabilities (except for
Permitted Encumbrances and liabilities assumed by Buyer in accordance with
Section 2.5). The Assets to be assigned, transferred and delivered by Seller
hereunder shall include the following:
(a) All Personal Property;
(b) All Leased Real Property;
(c) All Owned Real Property;
(d) All Licenses;
(e) All Assumed Contracts;
(f) All Intellectual Property;
(g) To the extent that they are in the possession or
control of any member of the Selling Group, each of the Station's
technical information and data, machinery and equipment warranties (to
the extent such warranties are assignable), if any, maps, plans,
diagrams, blueprints and schematics relating to such Station, if any,
including filings with the FCC which relate to such Station, and
goodwill relating to the foregoing;
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(h) To the extent that they are in the possession or
control of any member of the Selling Group, all books and records
relating to the business and operation of any of the Stations
(excluding those described in Section 2.2), including (i) executed
copies of the Assumed Contracts, or if no executed agreement exists,
summaries of each Assumed Contracts transferred pursuant to clause (e)
above and (ii) all records required by the FCC to be kept by each
Station, subject to the right of Seller to have such books and records
made reasonably available to Seller for tax and other legitimate
partnership purposes for a period of six years after the Closing;
(i) To the extent assignable, all computer programs and
software, and all rights and interests of Seller in and to computer
programs and software used or held for use in connection with the
business or operations of any Station;
(j) Except for claims relating to Taxes and Choses in
Action, if any, of any member of the Selling Group described on
Schedule 2.1(j), all Choses in Action of Seller; and
(k) All intangible assets of Seller relating to any
Station or the business or operation of any Station not specifically
described above, including goodwill and all other assets, other than
the Excluded Assets, used or held for use in connection with Station
or the business of the Seller.
2.2. Excluded Assets. The Excluded Assets shall consist of the
following:
(a) In each case determined as of 11:59 p.m. on the day
prior to the Closing Date, the cash on hand of any member of the
Selling Group and all other cash in any of the bank or savings
accounts of any member of the Selling Group; notes receivable, letters
of credit or other similar items of any member of the Selling Group;
any stocks, bonds, certificates of deposit and similar investments of
any member of the Selling Group; and any other cash equivalents of any
member of the Selling Group;
(b) Partnership or corporate books and other books and
records of any member of the Selling Group relating solely to internal
partnership or corporate matters and any other books and records not
related to any Station or the business or operations of any Station;
(c) Any claims, rights and interest of any member of the
Selling Group in and to any (i) refunds of Taxes or fees of any nature
whatsoever or (ii) deposits or utility deposits, which in each case
relate solely to the period prior to the Closing Date;
(d) All insurance contracts, including the cash
surrender value thereof, and all insurance proceeds or claims made by
any member of the Selling Group relating to property or equipment
repaired, replaced or restored by Seller prior to the Closing Date;
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(e) All Employee Benefit Plans and all assets or funds
held in trust, or otherwise, associated with or used in connection
with the Employee Benefit Plans;
(f) All Choses in Action, if any, of any member of the
Selling Group excluded from Section 2.1(j);
(g) All Accounts Receivable;
(h) The assets, if any, described on Schedule 2.2(h);
(i) All tangible and intangible personal property
disposed of or consumed in the ordinary course of business between the
date of this Agreement and the Closing Date, or as otherwise permitted
under the terms hereof; and
(j) Any Contracts not included in the Assumed Contracts
and all Contracts that have terminated or expired prior to the Closing
Date.
2.3. Purchase Price. Subject to the adjustments set forth in
Sections 2.4, 2.5(b), 4.4, and 9.1, the Purchase Price for the Assets is Thirty-
Eight Million Five Hundred Thousand Dollars ($38,500,000).
2.4. Adjustments and Prorations.
(a) All revenues arising from the operation of the
Stations earned or accrued up until 11:59 p.m. on the day prior to the Closing
Date and all expenses, costs and liabilities, arising therefrom incurred,
accrued or payable up until such time, including expenses arising under the
Assumed Contracts, tower rentals, business and license fees, utility charges,
real and personal property Taxes levied against the Assets, property and
equipment rentals, applicable copyright or other fees, sales and service
charges, other Taxes, wages, salaries, vacation and sick and employee
compensation pay, shall be prorated between Buyer and Seller in accordance with
the principle that (i) Seller shall receive all earned or accrued revenues,
refunds and deposits of Seller held by third parties, and shall be responsible
for all expenses, costs and liabilities incurred, payable or allocable to the
conduct of the business and operations of each Station for the period ending at
11:59 p.m. on the day prior to the Closing Date and (ii) Buyer shall receive
all revenues earned or accrued and shall be responsible for all expenses, costs
and liabilities incurred, payable or allocable to the conduct of the business
and operations of each Station for the period commencing on and continuing
after the Closing Date. An adjustment of the Purchase Price and proration shall
be made in favor of Buyer to the extent that Buyer assumes any liability under
any Assumed Contract to refund (or to credit against payments otherwise due)
any security deposit or similar prepayment paid to Seller by any lessee or
other third party which is not otherwise credited to Buyer. Subject to Buyer's
receipt of appropriate estoppel certificates, an adjustment of the Purchase
Price and proration shall be made in favor of Seller to the extent that Seller
has made (A) any security deposit under any Assumed Contract whether or not
there is a proration under such Assumed Contract or (B) other prepayment under
any Assumed Contracts for which there is a proration. Seller shall be liable
for all of the costs
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of employee compensation relating to each of the Stations properly attributable
to or accruable on account of service with the Seller through 11:59 p.m. on the
date prior to the Closing Date, including (1) all Taxes and related
contributions, vacations and sick pay and (2) all group medical, dental or
death benefits for claims incurred, related to or arising from, events
occurring on or prior to 11:59 p.m. on the date prior to the Closing Date, or
death or disability occurring on or prior to 11:59 p.m. on the date prior to
the Closing Date, whether reported by the Closing Date or thereafter; Buyer
shall be liable for all of the costs of employee compensation relating to each
of the Stations properly attributable or accruable thereafter on account of
service with Buyer. Except as provided in Section 2.5(b), Trade Deals shall not
be adjusted or prorated.
(b) Adjustments or prorations pursuant to this Section
2.4 will, insofar as feasible, be determined and paid on the Closing Date based
upon Seller's good faith calculation delivered to Buyer five days prior to the
Closing Date and reasonably approved by Buyer, with final settlement and
payment by the appropriate party occurring no later than 60 days after the
Closing Date. Within 60 days after the Closing Date, Buyer shall submit to
Seller its good faith determination of the adjustments or prorations required
by this Section 2.4. Buyer's determination of the amount of adjustment under
this Section 2.4 shall be made in accordance with GAAP, consistently applied.
If Seller disagrees with the determination made by Buyer of the adjustment,
Seller shall give prompt written notice thereof, but in no event later than 20
days after notice of Buyer's determination, specifying in reasonable detail the
nature and extent of the disagreement, and Buyer and Seller shall have a period
of 30 days in which to resolve the disagreement. If the parties are unable to
resolve the disagreement within the 30-day period, the matter shall be
submitted to Coopers & Lybrand L.L.P., an independent certified public
accounting firm, which accounting firm shall be directed to submit a final
resolution within 30 days. The accounting firm's determination shall be binding
on Buyer and Seller. Each party shall bear the fees and expenses of its own
representatives, including its independent accountants, if any, and shall share
equally the fees and expenses of Coopers & Lybrand, L.L.P., if engaged, to
resolve any disagreement between the parties. Within five Business Days
following a final determination hereunder, the party obligated to make payment
will make the payments determined to be due and owing in accordance with this
Section 2.4.
2.5. Assumption of Liabilities and Obligations. (a) As of the
Closing Date, Buyer shall assume and undertake to pay, discharge and perform
all the obligations and liabilities of Seller relating to each Station under
the Licenses and the Assumed Contracts assumed by Buyer relating to the time
period beginning on or arising out of events occurring on or after the Closing
Date. All other obligations and liabilities of Seller, including (i)
obligations or liabilities under any contract not included in the Assumed
Contracts, (ii) obligations or liabilities under any Assumed Contract for which
a Consent, if required, has not been obtained as of the Closing, (iii) any
obligations and liabilities arising under the Assumed Contracts that relate to
the time period prior to the Closing Date or arise out of events occurring
prior to the Closing Date and (iv) any forfeiture, claim or pending litigation
or proceeding relating to the business or operations of any Station, prior to
the Closing Date, shall remain and be the obligation and liability solely of
Seller. Other than as specified herein, Buyer, directly or indirectly, shall
assume no liabilities or obligations of any member of the Selling Group.
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(b) Schedule 2.5(b) contains a list of all of the Trade
Deals in effect as of December 31, 1996 and correctly sets forth under the
column entitled "balance" the balance, in dollar value, of either (i) the
Seller's obligations to the other party under each such Trade Deal (denoted by
a minus on Schedule 2.5(b)) or (ii) the amount due (reflected as a positive
number on Schedule 2.5(b)) Seller under such Trade Deal. On the Closing Date,
Buyer shall assume Seller's obligations under (i) the Trade Deals listed on
Schedule 2.5(b) to the extent that the goods or services to be provided by the
advertisers pursuant to such Trade Deals are used or useful in connection with
the business or operations of any Station and (ii) all Trade Deals entered into
by Seller between the date hereof and the Closing Date with the consent of
Buyer; provided, however, if, as of the Closing Date, the obligation of Seller
for air time due another party pursuant to all (x) Trade Deals (other than
Trade Deals involving media trades with television stations) to be assumed by
Buyer exceeds $5,000 in the aggregate or (y) Trade Deals involving media trades
with television stations to be assumed by Buyer exceeds $45,000 in the
aggregate, then in each case the amount of the applicable excess shall be
considered a pre-Closing Date operating expense of Seller to be prorated in
accordance with Section 2.4(a). The Trade Deals assumed by Buyer pursuant to
the terms of this Section 2.5(b) shall be considered Assumed Contracts.
2.6. Allocation. Within 30 days after the Closing Date, Seller and
Buyer shall negotiate in good faith an allocation of the Purchase Price among
the Assets that complies with Section 1060 of the Code with respect to the
allocation of the Purchase Price (as well as any liabilities assumed by Buyer).
If the allocation is not agreed upon within 30 days after the Closing, then
Buyer and Seller agree that the allocation shall be made and consistently
reported by Buyer and Seller in compliance with Section 1060 based upon an
asset valuation supplied by Broadcast Investment Analysts. The cost of such
appraisal shall be shared equally by Buyer and Seller. Buyer will order such
appraisal from Broadcast Investment Analysts on or after such date as the FCC
Consents have been placed on public notice. The appraisal, if required, shall
be provided to Seller within 45 days after the Closing Date.
2.7. Earnest Money. (a) Concurrently with the execution of this
Agreement, Buyer shall deposit the Original Deposit Letter of Credit with the
Escrow Agent to be held in escrow in accordance with the Deposit Escrow
Agreement in the form of Exhibit A.
(b) Concurrently with the giving of a Deferral Notice,
Buyer shall deposit the Substitute Deposit Letter of Credit with the Escrow
Agent to be held in escrow in accordance with the Deposit Escrow Agreement and,
effective upon such deposit, Buyer and Seller shall instruct the Escrow Agent
to release the Original Deposit Letter of Credit to Buyer for cancellation
unless Buyer increases the amount of the Original Letter of Credit to
$3,150,000 so as to constitute the issuance of a Substitute Letter of Credit.
(c) Subject to satisfaction of the conditions to the
obligations set forth in Article VIII, at the Closing, Seller shall instruct
the Escrow Agent to release and return the Deposit Letter of Credit to Buyer
for cancellation.
(d) If this Agreement is terminated as provided in
Section 10.1, Buyer and Seller shall instruct the Escrow Agent to release the
Deposit Letter of Credit to Buyer or to Seller, all as provided in Section
10.2.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING SELLER
3.1. Representations and Warranties Regarding Seller. Each member
of the Selling Group, jointly and severally, represents and warrants to Buyer
as follows (with the understanding that Buyer is relying on such
representations and warranties in entering into and performing this Agreement).
(a) Organization, Good Standing, Etc. Each of Point and
Midcontinent is duly organized and validly existing (and, as to Midcontinent
only, is in good standing) under the laws of its jurisdiction of organization
or incorporation, as applicable, and has all requisite partnership or
corporate, as applicable, power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Seller is duly
organized and validly existing under the laws of the State of Wisconsin and has
all requisite partnership power and authority to own, lease and operate its
properties and to carry on the business of the Stations as now being conducted
and is duly qualified to do business in each State listed on Schedule 3.1(a),
which States will represent every jurisdiction in which the nature of its
business or the ownership or leasing of the Assets makes such qualification
necessary, except where the failure to so qualify could not have a Material
Adverse Effect. Point and Midcontinent have delivered to Buyer true and
complete copies of the Agreement of Limited Partnership of Point, the Articles
of Incorporation and Bylaws of Midcontinent and the Partnership Agreement (or
equivalent organizational documents) of Seller (such documents being referred
to collectively herein as the "Organizational Documents"), as in effect at the
date of this Agreement. No member of the Selling Group is in violation of any
provisions of its Organizational Documents.
(b) Subsidiaries of Seller. Seller does not own,
directly or indirectly, any of the capital stock of, or other equity interest
in, any other Person or have the right, pursuant to a contract or otherwise, to
acquire any capital stock, equity interest or other similar investment in any
other Person.
(c) Capital Structure. Point and Midcontinent own all
of the outstanding equity interests in Seller, and will continue to be the sole
owners of equity interests in Seller on the Closing Date. No partnership
interests in Seller are reserved for issuance for any purpose and none will be
issued after the date hereof and prior to the Closing Date. As of the date
hereof, there are no bonds, debentures, notes or other indebtedness issued or
outstanding having the right to vote ("Voting Debt") on any matters on which
the partners of Seller may vote. All the issued and outstanding partnership
interests of Seller are duly and validly issued, are not subject to further
capital calls or assessments except as contemplated by the Partnership
Agreement of Seller, and have not been issued in violation of any preemptive or
similar rights. There are no options, warrants, calls, rights, commitments, or
agreements of any character to which Seller is a party or by which Seller is
bound obligating Seller to issue, deliver, or sell, or cause to be delivered or
sold, any additional equity interests or Voting Debt in Seller, or obligating
Seller to grant, extend, or enter into any such option, warrant, call, right,
commitment, or agreement. There are no outstanding contractual obligations of
Seller to repurchase, redeem, or otherwise acquire any equity interests in
Seller.
(d) Authority. To the extent that they are a party
thereto, each member of the Selling Group has all requisite partnership or
corporate, as applicable, power and authority to enter into this Agreement, the
Deposit Escrow Agreement, the Bill of Sale and Assignment, the Assumption
Agreement, the Indemnification Escrow Agreement, the Non-Competition Agreement
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and each other agreement, document, and instrument required to be executed by
any member of the Selling Group in accordance herewith or therewith
(collectively, the "Transaction Documents") and to consummate the transactions
contemplated hereby or thereby. The execution and delivery of the Transaction
Documents by each member of the Selling Group, to the extent that they are a
party thereto, and the consummation by each member of the Selling Group of the
transactions contemplated hereby or thereby, to the extent that they are a
party thereto, have been duly authorized by all necessary partnership or
corporate, as applicable, action on the part of each member of the Selling
Group. Each Transaction Document has been, or upon execution and delivery will
be, duly executed and delivered and constitutes the valid and binding
obligations of each member of the Selling Group that is a party thereto and is
enforceable against each of them to the extent that they are a party thereto in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(e) No Conflict; Required Filings and Consents. The
execution and delivery of the Transaction Documents by each member of the
Selling Group that is a party thereto does not, and the performance by each
member of the Selling Group that is a party thereto of the transactions
contemplated hereby or thereby to the extent that they are a party thereto will
not, subject to obtaining the consents, approvals, authorizations, and permits
and making the filings described in this Section 3.1(e) and obtaining any
required consents under Assumed Contracts, (A) violate, conflict with, or
result in any breach of any provision of any Organizational Documents, (B)
violate, conflict with, or result in a violation or breach of, or constitute a
default (with or without due notice or lapse of time or both) under, or permit
the termination of, or result in the acceleration of, or entitle any party to
accelerate (whether as a result of a change of control of any member of the
Selling Group or otherwise) any obligation, or result in the loss of any
benefit, or give any Person the right to require any security to be
repurchased, or give rise to the creation of any Lien, charge, security
interest, or encumbrance upon any of the Assets under any of the terms,
conditions, or provisions of any loan or credit agreement, note, bond,
mortgage, indenture, or deed of trust, or any license, lease, agreement, or
other instrument or obligation to which any member of the Selling Group is a
party or by which any member of the Selling Group or any of the Assets may be
bound or subjected, or (C) violate any order, writ, judgment, injunction,
decree, statute, rule, or regulation of any Governmental Entity applicable to
any member of the Selling Group or by which or to which any of the Assets is
bound or subject. No Consent of any Governmental Entity is required by or with
respect to any member of the Selling Group in connection with the execution and
delivery of any Transaction Documents by any member of the Selling Group or the
consummation of the transactions contemplated hereby or thereby, except for (1)
the filing of a premerger notification report under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and (2) the FCC
Consents (as contemplated by Section 7.1 hereof).
(f) Reports; Financial Statements; Absence of Certain
Changes or Events.
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(i) Each member of the Selling Group has filed
all forms, reports, statements, and other documents required to be
filed with any and all Governmental Entities, including the FCC (all
such forms, reports, statements and other documents being referred to
herein, collectively, as the "Company Reports"). The Company Reports
were prepared in all material respects in accordance with the
requirements of applicable law.
(ii) The Selling Group has delivered to Buyer
copies of (i) the audited balance sheet as of December 31, 1995,
together with the related audited statements of operations, partner's
capital and cash flows, of Point for the four month period then ended,
and the notes thereto, accompanied by the report thereon of Coopers &
Lybrand L.L.P., independent public accountants, (ii) the unaudited
WIBA and WMAD combined statement of operations for the nine month
periods ended September 30, 1996 and September 30, 1995, (iii) the
unaudited WIBA and WMAD combined statement of operations for the
twelve month periods ending December 31, 1995 and December 31, 1994,
(iv) the unaudited balance sheet of Point as of August 31, 1996 (the
"Point Balance Sheet"), (v) the unaudited income statement of
Midcontinent for the nine month period ended September 30, 1996
together with detailed profit and loss statements for the month of
September 1996 and the nine month period ended September 30, 1996,
(vi) the unaudited balance sheet as of August 31, 1996 of Midcontinent
(the "Midcontinent Balance Sheet"), and (vii) the unaudited income
statement of Midcontinent for the year ended December 31, 1995
together with a detailed profit and loss statement for such year. All
of the foregoing financial statements are collectively referred to
herein as the "Financial Statements". The Financial Statements,
including the notes thereto, were prepared in accordance with GAAP
applied on a consistent basis throughout the periods covered thereby
(except to the extent disclosed therein or in Schedule 3.1(f) or
required by changes in GAAP) and present accurately in all material
respects the information purported to be presented therein as of such
dates and for the periods then ended.
(iii) The Selling Group has delivered to Buyer
copies of all financial statements of WIBA and WMAD as of dates prior
to September 1, 1995, which were delivered by the previous owners of
such Stations to Point in connection with Point's acquisition of such
Stations from such previous owners. No member of the Selling Group has
reason to believe that such financial statements were not prepared in
accordance with GAAP applied on a consistent basis throughout the
periods covered thereby (except to the extent disclosed therein or in
Schedule 3.1(f) or required by changes in GAAP) or that such financial
statements do not present accurately in all material respects the
information purported to be presented therein as of such dates and for
the periods then ended.
(iv) Except as disclosed in Schedule 3.1(f), there
is no liability or obligation of any kind, whether accrued, absolute,
fixed, contingent, or otherwise, of Point, Midcontinent or Seller, as
applicable, that is not reflected or reserved against in the Point
Balance Sheet or the Midcontinent Balance Sheet, as applicable
(collectively, the "Balance Sheets"), other than (A) liabilities and
obligations incurred in the ordinary course of business in a manner
consistent with past practice since August 31, 1996 (the "Balance
Sheet Date"),
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or (B) any such liability or obligation which would not be required to
be presented in financial statements or the notes thereto prepared in
conformity with GAAP applied, in a manner consistent with past
practice, in the preparation of the Financial Statements.
(v) Except as disclosed in Schedule 3.1(f),
since the Balance Sheet Date, each member of the Selling Group has
conducted its respective business only in the ordinary course
consistent with past practice and nothing has occurred that would have
been prevented by Section 4.1 if the terms of such section had been in
effect as of and after the Balance Sheet Date. Since the Balance Sheet
Date, there has not occurred, and no member of the Selling Group has
incurred or suffered, any event, circumstance, or fact that would
result in a Material Adverse Effect. Additionally, since August 31,
1996, there has not occurred any event, circumstance, or fact that
materially impairs the physical assets at any Station.
(g) Compliance with Applicable Laws: FCC Matters.
(i) The respective business of each member of the
Selling Group has been conducted in compliance in all material
respects with each Applicable Law. No investigation or review by any
Governmental Entity with respect to any member of the Selling Group is
pending or, to the Knowledge of the Selling Group, threatened. Without
limiting the generality of the foregoing, each member of the Selling
Group has complied in all material respects with the Communications
Act of 1934, as amended, and all rules, regulations and written
policies of the FCC thereunder (collectively, the "Communications
Act"), all obligations with respect to equal opportunity under
Applicable Law, and all rules and regulations of the Federal Aviation
Administration applicable to each of the towers used or held for use
by each Station. In addition, in all material respects each member of
the Selling Group has duly and timely filed, or caused to be so filed,
with the FCC and other appropriate Governmental Entities all reports,
statements, documents, registrations, filings, or submissions with
respect to the operation of each Station and the ownership thereof,
including applications for renewal of authority required by Applicable
Law to be filed. All such FCC filings complied in all material
respects with Applicable Laws when made, and no deficiencies have been
asserted with respect to any such filings. The material required by 47
C.F.R. ss. 73.3526 to be kept in the public inspection files of each
Station is in such files.
(ii) Schedule 3.1(g) is a true and complete list
of (A) all of the FCC Licenses, including the expiration dates
thereof, as of the date of this Agreement and (B) all other material
licenses, permits, or authorizations issued to any member of the
Selling Group by any other Governmental Entities and held by any of
them as of the date of this Agreement. Such FCC Licenses, licenses,
permits, and authorizations, and all pending applications for
modification, extension, or renewal thereof or for new licenses,
permits, permissions, or authorizations, are collectively referred to
herein as the "Station Licenses." Seller is the legally authorized
holder of each of the Station Licenses. The Station Licenses
constitute all the licenses, permits and authorizations required for
the operation of the Stations and the business of Seller, and each of
the Station Licenses is in full force and
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effect. Each of the Stations has been operated in all material
respects in accordance with the terms of the applicable Station
Licenses, and Seller is otherwise in compliance with, and has
conducted its business so as to comply with, the terms of the
respective Station Licenses. There are no proceedings pending or, to
the Knowledge of the Selling Group, threatened with respect to the
ownership or operation of any Station which reasonably may be expected
to result in the revocation, material adverse modification,
non-renewal, or suspension of any Station Licenses, the denial of any
pending applications for Station Licenses, the issuance against the
Seller of any cease and desist order, or the imposition of any
administrative actions by the FCC or any other Governmental Entity
with respect to any of the Station Licenses, or which reasonably may
be expected to materially and adversely affect any Station's ability
to operate as currently operated or Buyer's ability to obtain control
of any Station Licenses or operate any Station. To the Knowledge of
the Selling Group, no other broadcast station or radio communications
facility is causing interference to any Station's transmissions beyond
that which is allowed by FCC rules and regulations and no Station is
causing interference to any other broadcast station or radio
communications facilities' transmissions beyond that which is allowed
by the FCC rules and regulations. Each member of the Selling Group has
no reason to believe that the FCC will not renew any of the Station
Licenses issued by the FCC in the ordinary course of business. To the
Knowledge of the Selling Group, there are no facts relating to any
member of the Selling Group under the Communications Act that
reasonably may be expected to disqualify Seller from transferring
control of the Station Licenses pursuant to the terms of this
Agreement or that would prevent the consummation by any of them of the
transactions contemplated by this Agreement.
(h) Absence of Litigation. Except as set forth on
Schedule 3.1(h), there is no claim, action, suit, inquiry, judicial, or
administrative proceeding, grievance, or arbitration pending or, to the
Knowledge of the Selling Group, threatened against any member of the Selling
Group or any of the Assets by or before any arbitrator or Governmental Entity,
nor to the Knowledge of the Selling Group are there any investigations relating
to any member of the Selling Group or any of the Assets pending or threatened
by or before any arbitrator or Governmental Entity. Except as set forth in
Schedule 3.1(h), there is no judgment, decree, injunction, order,
determination, award, finding, or letter of deficiency of any Governmental
Entity or arbitrator outstanding against any member of the Selling Group or any
of the Assets. There is no action, suit, inquiry, judicial, or administrative
proceeding pending or, to the Knowledge of the Selling Group, threatened
against any member of the Selling Group relating to the transactions
contemplated by this Agreement.
(i) Insurance. Since the date that Point acquired the
Point Stations and since January 1, 1992, in the case of the Midcontinent
Stations, each of Point and Midcontinent has been insured and as of the date
hereof the Seller is insured against such risks as companies engaged in a
similar business would, in accordance with good business practice, customarily
be insured. Schedule 3.1(i) sets forth an accurate summary of all fire, general
liability, malpractice liability, theft, and other forms of insurance and all
fidelity bonds held by or applicable to Seller. Excluding insurance policies
that have expired and been replaced in the ordinary course of business, no
insurance policy held by any member of the Selling Group has been canceled
within the last two years prior to the date hereof.
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(j) Real Property. (i) Schedule 3.1(j) contains an
accurate description of all the Owned Real Property. Seller has good and
marketable, fee simple, absolute title in and to the Owned Real Property.
Seller has sufficient title to such easements, rights of way and other rights
appurtenant to each of the Owned Real Properties as are necessary to permit
ingress and egress to and from the Owned Real Property to a public way and,
except as set forth on Schedule 3.1(j), the improvements on the Owned Real
Property have access to such sewer, water, gas, electric, telephone and other
utilities as are necessary to allow the business of the Seller to be operated
in the ordinary course. There is no pending condemnation or similar proceeding
affecting the Owned Real Property or any portion thereof, and to the Knowledge
of the Selling Group, no such action is threatened. The improvements on the
Owned Real Property used in connection with the present day-to-day operation of
the Stations are in operating condition and repair (ordinary wear and tear
excepted), fit for the purposes for which they are being utilized, and there
has been no damage to such improvements that affects the conduct of such
business in any material respect that has not been repaired or remedied. Except
as set forth on Schedule 3.1(j), there are no lessees or tenants at will in
possession of any portion of any of the Owned Real Property other than Seller,
whether as lessees, tenants at will, trespassers or otherwise. No zoning,
building or other federal, state or municipal law, ordinance, regulation or
restriction is violated in any material respect by the continued maintenance,
operation or use of the Owned Real Property or any tract or portion thereof or
interest therein in its present manner. The current use of the Owned Real
Property and all parts thereof does not violate any restrictive covenants of
record affecting any of the Owned Real Property. All necessary Licenses by any
Governmental Entity with respect to the Owned Real Property have been obtained,
have been validly issued, and are in full force and effect.
(ii) Schedule 3.1(j) contains an accurate
descriptions of all the leasehold interests relating to the business and
operations of each of the Stations as now conducted. Each lease described in
Schedule 3.1(j) is a valid and binding obligation of Seller and is in full
force and effect without amendment other than as described in Schedule 3.1(j).
Except as otherwise disclosed on Schedule 3.1(j) Seller is not, and to the
Knowledge of the Selling Group, no other party is, in material default under
any lease described in Schedule 3.1(j). Subject to obtaining the Consents
disclosed in Schedule 3.1(j), Seller has the full legal power and authority to
assign its rights under the leases listed in Schedule 3.1(j) to Buyer. All
leasehold interests listed in Schedule 3.1(j) (including the improvements
thereon) are available for immediate use in the conduct of the business and
operations of each of the Stations as currently conducted.
(k) Personal Property. Schedule 3.1(k) contains a
description of the items of Personal Property (having a historical cost of not
less than $10,000 for each item) which comprise all such Personal Property used
or held for use in connection with the business and operations of any Station
or which permits the operation of any Station as now conducted. Except as set
forth on Schedule 3.1(k), Seller has good title to, or a valid leasehold or
license interest in, all Personal Property, and none of the Personal Property
is subject to any Lien or other encumbrances, except for Permitted
Encumbrances. No member of the Selling Group is, and to the Knowledge of the
Selling Group, no other party is, in material default under any of the leases,
licenses and other Contracts relating to the Personal Property. Except as
otherwise disclosed in Schedule 3.1(k), the Personal Property (i) is in
operating condition and repair (ordinary wear and tear excepted) and not in
need
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of material repair or replacement, (ii) is available for immediate use in the
business and operation of each of the Stations as currently conducted, and
(iii) permits each of the Stations to operate in accordance with the terms of
their respective FCC Licenses and the rules and regulations of the FCC and with
all other applicable federal, state and local statutes, ordinances, rules and
regulations.
(l) Liens and Encumbrances. All of the Assets, including
leases, are free and clear of all liens, pledges, claims, security interests,
restrictions, mortgages, tenancies, and other possessory interests, conditional
sale or other title retention agreements, assessments, easements, rights of
way, covenants, restrictions, rights of first refusal, defects in title,
encroachments, and other
burdens, options or encumbrances of any kind (collectively, "Liens") except (i)
Permitted Encumbrances and (ii) Liens in favor of Finova Capital Corporation
securing that certain $13,500,000 loan from Finova Capital Corporation to
Seller (the Liens referred to in clauses (i) and (ii) being "Permitted Liens").
At the Closing, all of the Assets shall be free and clear of all Liens other
than Permitted Encumbrances.
(m) Environmental Matters.
(i) Schedule 3.1(m) sets forth each piece of
real property owned, operated or leased by Seller with respect to the
Stations (the "Sites") and the date that Point, Midcontinent or Seller
purchased or commenced operating or leasing each site (the
"Commencement Date"). With respect to each Site, since the
Commencement Date, the operations of each member of the Selling Group
on the Sites have complied and continue to comply in all material
respects with all Applicable Laws and rules of common law pertaining
to the environment, natural resources, and public or employee health
and safety, including all Environmental Laws;
(ii) No judicial proceedings are pending or, to
the Knowledge of the Selling Group, threatened against any member of
the Selling Group alleging the violation of any Environmental Laws, and
there are no administrative proceedings pending or, to the Knowledge
of the Selling Group, threatened against any member of the Selling
Group, alleging the violation of any Environmental Laws, and no
written notice from any Governmental Entity or any private or public
Person has been received by any member of the Selling Group claiming
any violation of any Environmental Laws in connection with any Site or
requiring any remediation, clean-up, modification, repairs, work,
construction, alterations, or installations on or in connection with
any Site that are necessary to comply with any Environmental Laws and
that have not been complied with or otherwise resolved to the
satisfaction of the party giving notice;
(iii) All permits, registrations, licenses,
authorizations, and the like ("Permits") required to be obtained or
filed by any member of the Selling Group under any Environmental Laws
in connection with their respective operations at the Sites, including
those activities relating to the generation, use, storage, treatment,
disposal, release, or remediation of Hazardous Substances (as such
term is defined in Section 3.1(m)(iv) hereof), have been duly obtained
or filed, and each member of the Selling Group is and has at all
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times been in full compliance in all material respects with the terms
and conditions of all such Permits;
(iv) Except as set forth on Schedule 3.1(m),
all Hazardous Substances used or generated by each member of the
Selling Group or any of their respective predecessors on, in, or under
any Site are and have at all times been generated, stored, used,
treated, disposed of, and released by such Persons or on their behalf
in such manner as not to result in any Environmental Costs or
Liabilities. "Hazardous Substances" means (A) any hazardous materials,
hazardous wastes, hazardous substances, toxic wastes, and toxic
substances as those terms are defined under any Environmental Laws;
(B) any asbestos or any material which contains any hydrated mineral
silicate, including chrysolite, amosite, crocidolite, tremolite,
anthophylite and/or actinolite, whether friable or non-friable; (C)
PCBs, or PCB- containing materials, or fluids; (D) radon; (E) any
other hazardous, radioactive, toxic or noxious substance, material,
pollutant, contaminant, constituent, or solid, liquid or gaseous
waste; (F) any petroleum, petroleum hydrocarbons, petroleum products,
crude oil and any fractions or derivatives thereof, any oil or gas
exploration or production waste, and any natural gas, synthetic gas
and any mixtures thereof; (G) any substance that, whether by its
nature or its use, is subject to regulation under any Environmental
Laws or with respect to which any Environmental Laws or Governmental
Entity requires environmental investigation, monitoring or
remediation; and (H) any underground storage tanks, dikes, or
impoundments as defined under any Environmental Laws;
(v) There are not now, nor have there been in
the past, on, in or under any Site when owned, leased, or operated by
any member of the Selling Group or when owned, leased, or operated by
any of their respective predecessors, any Hazardous Substances that
are in a condition or location that violates any Environmental Law or
that reasonably could be expected to require remediation under any
Environmental Laws or give rise to claim for damages or compensation
by any affected Person or to any Environmental Costs or Liabilities;
(vi) No member of the Selling Group has
received and, to the Knowledge of the Selling Group, does not expect
to receive, any notification from any source advising any member of
the Selling Group that: (A) because of its operations at the Sites, it
is a potentially responsible party under CERCLA or any other
Environmental Laws; (B) any Site is identified or proposed for listing
as a federal National Priorities List ("NPL") (or state- equivalent)
site or a Comprehensive Environmental Response, Compensation and
Liability Information System ("CERCLIS") list (or state-equivalent)
site; or (C) any facility to which it has ever transported or
otherwise arranged for the disposal of Hazardous Substances is
identified or proposed for listing as an NPL (or state equivalent)
site or CERCLIS (or state- equivalent) site; and
(vii) No Station's operations has a significant
environmental impact, as defined by 47 C.F.R. ss. 1.1307.
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(n) Taxes. Since January 1, 1992, each member of the Selling
Group has filed or caused to be filed all Tax returns affecting a Station or
any of the Assets which are required to be filed by it, and all such Tax
Returns which have been filed are accurate and complete in all material
respects, and each member of the Selling Group has timely paid all Taxes shown
on such returns or on any Tax assessment received by any of them to the extent
that such Taxes have become due. There are no Liens for Taxes that have become
due upon any of the Stations or any of the Assets. No member of the Selling
Group has received notice of any Tax deficiency or delinquency. No Internal
Revenue Service audit of any member of the Selling Group is pending (except a
pending audit of the parent of Midcontinent) or, to the Knowledge of the
Selling Group, threatened, and the results of any completed audits are properly
reflected in the Financial Statements. All monies required to be withheld by
each member of the Selling Group from employees or collected from customers for
Taxes and the portion of any Taxes to be paid by any member of the Selling
Group to any Governmental Entity or set aside in accounts for such purposes
have been so paid or set aside, or such monies have been reserved against and
are reflected in the Financial Statements and Balance Sheets. For each taxable
year or period not closed by the applicable statute of limitations, (i) Seller
and Point are each properly classified as a partnership (and not as an
association taxable as a corporation) for tax purposes, (ii) neither Seller nor
Point has a partner that is a "foreign partner" within the meaning of Section
1446(e) of the Code, and (iii) no partner of either Seller or Point is a
"foreign Person" within the meaning of Section 1445(f)(3) of the Code. There is
no legal, administrative, or Tax proceeding pending pursuant to which any
member of the Selling Group is or could be made liable for any Taxes,
penalties, interest, or other charges, the liability for which could extend to
Buyer as transferee of the business of the Stations.
(o) Certain Agreements.
(i) Schedule 3.1(o) hereto lists each oral or
written (A) employment or consulting Contract that is not terminable
without liability or penalty on 30 days or less notice and (B)
contract, agreement or commitment under which any party thereto
remains obligated to provide goods or services having a value, or to
make payments aggregating, in excess of $50,000 per year, in any such
case to which any member of the Selling Group is a party or bound.
Each such agreement, contract, or obligation described in Schedule
3.1(o) or required to be so described is a valid and binding
obligation of Seller and is in full force and effect without amendment
other than as described in Schedule 3.1(o). Each member of the Selling
Group and, to the Knowledge of the Selling Group, each other party to
such contracts, has performed the material obligations required to be
performed by it under the agreements so described and is not (with or
without lapse of time or the giving of notice, or both) in material
breach or default thereunder. Schedule 3.1(o) identifies, as to each
agreement, contract, or obligation listed thereon, whether the consent
of the other party thereto is required in order for such agreement,
contract, or obligation to continue in full force and effect upon the
consummation of the transactions contemplated hereby or whether such
agreement, contract, or obligation can be canceled by the other party
without liability to such other party due to the consummation of the
transactions contemplated hereby. A copy of each written agreement,
contract, obligation, plan, or arrangement and a description
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of each oral agreement, contract, obligation, plan, or arrangement set
forth in Schedule 3.1(o) has been provided to Buyer.
(ii) Except as described in Schedule 3.1(o), no
member of the Selling Group is a party to any oral or written
agreement, plan or arrangement with any employee or other Station or
broadcast personnel (whether an employee, consultant or an independent
contractor) of any member of the Selling Group (A) the benefits of
which are contingent, or the terms of which are materially altered,
upon, or result from, the occurrence of a transaction involving Seller
of the nature of any of the transactions contemplated by this
Agreement, (B) providing severance benefits longer than forty-five days
or other benefits after the termination of employment or other
contractual relationship regardless of the reason for such termination
and regardless of whether such termination is before or after a change
of control, (C) under which any Person may receive payments subject to
the tax imposed by Section 4999 of the Code or (D) any of the benefits
of which will be increased, or the vesting of benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated
by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement.
(p) ERISA Compliance; Labor.
(i) Neither Seller nor any other trades or
businesses under common control within the meaning of Section
4001(b)(1) of ERISA with the Seller maintains or has contributed or
been obligated to contribute to any Employee Pension Benefit Plan or
to any Multiemployer Plan.
(ii) True, correct, and complete copies of each of
the Employee Benefit Plans maintained or contributed to by the Seller,
and related trusts, if applicable, have been furnished to Buyer, along
with the most recent report filed on Form 5500 and summary plan
description with respect to each Employee Benefit Plan required to
file Form 5500.
(iii) Schedule 3.1(p) is a true and complete list of
each collective bargaining agreement to which any member of the
Selling Group is a party. Except for those unions which are parties to
one or more of the listed collective bargaining agreements or as
otherwise listed on Schedule 3.1(p), no member of the Selling Group
has agreed to recognize any union or other collective bargaining
representative, nor has any union or other collective bargaining
representative been certified as the exclusive bargaining
representative of any of its employees. Each member of the Selling
Group (A) is, and has been since January 1, 1993, in substantial
compliance with all applicable laws regarding labor and employment
including laws regarding employment practices, terms and conditions of
employment, equal employment opportunity, employee benefits,
affirmative action, wages and hours, plant closing and mass layoff,
occupational safety and health, immigration, and workers'
compensation, (B) is not engaged, nor has it since January 1, 1993,
engaged, in any unfair labor practices, and has no, and has not had
since January 1, 1993, any, unfair labor practice charges or
complaints before the National Labor Relations Board pending or, to
the
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Knowledge of the Selling Group, threatened against it, (C) has no, and
has not had since January 1, 1993, any, grievances, arbitrations, or
other proceedings arising or asserted to arise under any collective
bargaining agreement, pending or, to the Knowledge of the Selling
Group, threatened against it and (D) has no, and has not had since
January 1, 1993, any, charges, complaints, or proceedings commenced
before the Equal Employment Opportunity Commission, Department of
Labor or any other Governmental Entity responsible for regulating
employment practices, pending, or, to the Knowledge of the Selling
Group, threatened against it. There is no labor strike, slowdown, work
stoppage or lockout pending or, to the Knowledge of the Selling Group,
threatened against or affecting any member of the Selling Group, and
no member of the Selling Group has experienced any labor strike,
slowdown, work stoppage or lockout since January 1, 1993. Except as
set forth on Schedule 3.1(p), to the Knowledge of the Selling Group no
union organizational campaign or representation petition is currently
pending with respect to any of the employees of any member of the
Selling Group.
(q) Patents, Trademarks, Etc. Schedule 3.1(q) is a true and
complete list of all of the Intellectual Property. Seller owns or has the
unencumbered right to use pursuant to a valid, binding, and enforceable license
agreement or other contract or arrangement all such Intellectual Property. To
the Knowledge of the Selling Group, Seller is not infringing any such
Intellectual Property, and no member of the Selling Group is aware of any
infringement by others of any of the Intellectual Property owned by Seller.
(r) Affiliate Relationships. Schedule 3.1(r) sets forth a
true and complete list of all contracts or other arrangements involving Seller
in which any partner, officer, director, or any of its Affiliates has a
financial interest, including indebtedness to Seller.
(s) Assets. Except for the Excluded Assets, the Assets to be
assigned and transferred pursuant to Section 2.1 include all assets used or
held for use in connection with the business and operations of the Stations as
currently conducted. Prior to the date of this Agreement, Point and
Midcontinent have respectively assigned and transferred to Seller the Assets
respectively owned by each of them.
(t) No Dispositions. Except for the assignment and transfer
made by Point and Midcontinent to Seller and the sale of WMAD-AM, since the
Balance Sheet Date there has not occurred any sale, lease, transfer,
assignment, abandonment or other disposition of any of the Assets other than
any disposition of (i) obsolete property or (ii) property in connection with
the acquisition of replacement property of equal value.
(u) Disclosure. No representation or warranty by any member
of the Selling Group contained in this Agreement or in any certificate
furnished pursuant to this Agreement contains or will contain any untrue
statement of a material fact.
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3.2. Representations and Warranties of Buyer. Buyer represents
and warrants to the Selling Group as follows (with the understanding that the
Selling Group is relying on such representations and warranties in entering
into and performing this Agreement):
(a) Organization Standing and Power. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation and has all requisite corporate power and
authority to own, lease, and operate its properties and to carry on its
business as now being conducted.
(b) Authority. To the extent that Buyer is a party thereto,
Buyer has all requisite corporate power and authority to enter into the
Transaction Documents and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of the Transaction Documents by Buyer
and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on the part of
Buyer. The Transaction Documents have been, or upon execution and delivery will
be, duly executed and delivered and constitute the valid and binding
obligations of Buyer, enforceable against it in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith, and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) No Conflict; Required Filings and Consents. The
execution, delivery and performance by Buyer of the Transaction Documents (with
or without the giving of notice, the lapse of time, or both) does not (i)
conflict with the Certificate of Incorporation or By-Laws of Buyer; (ii) except
for the necessity of obtaining applicable Consents, conflict with, result in a
breach of, or constitute a default under any Applicable Law known to Buyer; or
(iii) except for the necessity of obtaining applicable Consents, conflict with,
result in a breach of, constitute a default under, permit any party to
terminate, modify, accelerate the performance of or cancel the terms of, any
material agreement, lease, instrument of indebtedness, or license to which
Buyer is a party, or by which Buyer is bound, such that Buyer could not acquire
or operate the Assets. No Consent of any Governmental Entity is required by or
with respect to Buyer in connection with the execution and delivery of any
Transaction Documents by Buyer or the consummation by it of the transactions
contemplated hereby or thereby, except for (A) the filing of a premerger
notification report under the HSR Act, (B) the FCC Consents (as contemplated by
Section 7.1), and (C) applicable requirements, if any, of the Securities Act
and the Exchange Act and the rules and regulations thereunder and state
securities or blue sky laws.
(d) Litigation. As of the date hereof, there is no action,
suit, inquiry, judicial or administrative proceeding pending or, to the
Knowledge of Buyer, threatened against it relating to the transactions
contemplated by this Agreement.
(e) FCC Matters. Buyer Knows of no facts relating to it under
the Communications Act that reasonably may be expected to disqualify it from
qualifying as an assignee
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of the Station Licenses or that would prevent it from consummating the
transactions contemplated by this Agreement. Buyer is able to certify on an FCC
Form 314 that it is financially qualified and on the Closing Date shall be able
to so certify.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1. Covenants of the Selling Group. Except as contemplated by this
Agreement or to the extent that Buyer shall otherwise consent in writing, from
the date of this Agreement until the Closing, each member of the Selling Group,
jointly and severally, covenants and agrees that Seller shall not:
(a) except for the sale of Excluded Assets, conduct its
business in any manner except in the ordinary course consistent with past
practice; or
(b) fail to use commercially reasonable efforts to preserve
intact its present business organization and to keep available the services of
its present officers, Station managerial personnel (including the General
Manager, Station Manager, General Sales Manager, Local Sales
Manager, Programming Director, and Business Manager, or Persons performing
comparable duties, of each Station (collectively, the "Station Management"))
and over-the-air personnel or independent contractors and to preserve its
relationships with customers, suppliers and others having business dealings
with it; or
(c) except as described in Schedule 4.1(c), fail to use
commercially reasonable efforts to maintain the present format of the Stations
and with programming consistent with past practices; or
(d) except for amendments, terminations (without payment of
penalty or damages), renewals, or failures to renew (without payment of penalty
or damages) of employment agreements with over-the-air personnel in the
ordinary course of business and consistent with past practice (subject to prior
consultation with Buyer reasonably in advance thereof), enter into, materially
amend, terminate, or fail to use commercially reasonable efforts to renew any
material Contract (i.e., a contract or agreement of the type required to be
described in Schedule 3.1(o)) (provided that Seller shall not be required to
renew any material Contract on terms that are less favorable to Seller);
default in any material respect (or take or omit to take any action that, with
or without the giving of notice or passage of time, would constitute a material
default) under any material Contract; or enter into any new material Contract;
or
(e) merge or consolidate with or into any other legal entity,
dissolve or liquidate; or
(f) adopt or amend any Employee Benefit Plan or collective
bargaining agreement or increase in any manner the compensation or fringe
benefits of any director, officer, or
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employee or other Station and broadcast personnel (whether employees or
independent contractors), except as required by law; or
(g) terminate any employee of any of the Stations (other than
administrative personnel) without prior consultation with Buyer regarding the
basis for such termination; or
(h) except as contemplated by Section 4.4, acquire (including
by merger, consolidation, or the acquisition of any equity interest or assets),
sell (whether by merger, consolidation, or the sale of an equity interest or
assets), lease, or dispose of any Assets other than Excluded Assets except in
the ordinary course of business and consistent with past practice or, even if
in the ordinary course of business and consistent with past practices (other
than sales of surplus or obsolete equipment), whether in one or more
transactions, acquire, sell, lease, or dispose of an Asset or Assets having an
aggregate fair market value in excess of $50,000; or
(i) mortgage, pledge, or subject to any Lien, other than
Permitted Liens, any of the Assets; or
(j) except as required by GAAP, applicable law, or
circumstances which did not exist as of the Balance Sheet Date, change any of
the material accounting principles or practices used by it; or
(k) change in any material respect its existing practices and
procedures with respect to the collection of accounts receivable of any Station
or, except with respect to good faith attempts consistent with past practice to
obtain payment of a past due receivable or except in accordance with existing
practices, a contested receivable of any Station; offer to discount the amount
of any outstanding receivable or extend any other incentive (whether to the
account debtor or any employee or third party responsible for the collection of
receivables) to accelerate the collection thereof; change any Station's
advertising rates or policies, procedures or methods in connection with the
sale of advertising time in a manner expected to accelerate the receipt of cash
payments; or fail to incur annual advertising and promotional department
expenses in cash and trade below 90% of that budgeted for 1997 (as such budget
previously has been delivered to Buyer); or
(l) enter into, or enter into negotiations or discussions
with any Person other than Buyer with respect to, any local marketing
agreement, time brokerage agreement, joint sales agreement, or any other
similar agreement; or
(m) agree to or make any commitment, orally or in writing, to
take any actions prohibited by this Agreement.
4.2. Negative Trade Balance. Each member of the Selling Group shall
use commercially reasonable efforts to ensure that as of the Closing Date the
Seller Negative Trade Balance, as defined below, of the Stations, taken as a
whole, does not in the aggregate exceed (x) $5,000 in the case of all Trade
Deals (other than Trade Deals involving media trades with television stations)
or (y) $45,000 in the case of Trade Deals involving media trades with
television stations, provided that
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in each case such excess shall be an adjustment to the Purchase Price as
provided in Section 2.5(b). "Seller Negative Trade Balance" means the
difference, if negative, between the value of time owed under the applicable
barter agreements to which any of the Stations is a party or by which any of
them is bound and the value of the goods and services to be received under such
agreements.
4.3. Environmental Site Assessments. Buyer, at its sole costs and
expenses, for itself or on behalf of its lenders or other financing sources
shall have the right to have Phase I or Phase II environmental site assessments
("ESAs") performed by a nationally recognized and duly qualified environmental
consultant at each identified transmission site owned, operated, or leased by
Seller and at such other identified real properties and facilities owned,
operated, or leased by Seller. Each member of the Selling Group covenants and
agrees that they shall cooperate with Buyer and its representatives in the
performance of such ESAs to their completion.
4.4 Relocation of Operations. Buyer acknowledges that Seller
intends to relocate all operations of the Stations to the building now occupied
by WIBA-FM and WIBA-AM, located at 2651 South Fish Hatchery Road, Madison,
Wisconsin (the "WIBA Building"), subject to the construction of additional
space to the WIBA Building and the purchase and installment of necessary
equipment for such relocation. Provided that the transactions contemplated
hereunder are consummated, Buyer shall bear all costs of such construction and
equipment that are approved in writing by Buyer in advance. In any event,
Seller shall bear all such costs that are not so approved by Buyer. Any amounts
so approved by Buyer and paid by Seller prior to the Closing shall be added to
the Purchase Price hereunder and paid by Buyer to Seller at the Closing. Seller
shall deliver to Buyer reasonably detailed information on all proposed
construction and equipment expenditures at least ten days before the date on
which Seller proposes to become contractually obligated with respect thereto.
If Buyer does not object in writing to any of such expenditures prior to the
expiration of such ten day period, Buyer will be deemed to have approved such
expenditures.
ARTICLE V
ADDITIONAL AGREEMENTS OF THE SELLING GROUP
5.1. No Solicitation of Transactions. No member of the Selling
Group shall, directly or indirectly, through any partner, officer, director,
agent, or otherwise, solicit, initiate, or encourage the submission of any
proposal or offer from any Person relating to any acquisition or purchase of
all or any material portion of the Assets or any equity interest in any member
of the Selling Group or any merger, consolidation, share exchange, business
combination, or other similar transaction with any member of the Selling Group
or participate in any negotiations regarding, or furnish to any other Person
any information with respect to, or otherwise cooperate in any way with, or
assist or participate in, facilitate, or encourage, any effort or attempt by
any other Person to do or seek any of the foregoing. The Selling Group shall
promptly communicate to Buyer the material terms of any such proposal (and the
identity of the party making such proposal) that it may receive. Each member of
the Selling Group agrees not to release any third party from, or waive any
provision of, any confidentiality or standstill agreement to which any member
of the Selling Group is a party. The
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Selling Group immediately shall cease and cause to be terminated all existing
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
5.2. Access and Information. (a) Until the Closing, subject only
to applicable rules and regulations of the FCC, each member of the Selling
Group shall afford to Buyer and its representatives (including accountants and
counsel) full access, during normal business hours, upon reasonable notice and
in such manner as will not unreasonably interfere with the conduct of the
business of Seller, to all properties, books, records, and Tax Returns of each
member of the Selling Group and all other information with respect to their
respective businesses, together with the opportunity to make copies of such
books, records, and other documents and to discuss the business of any member
of the Selling Group with such directors, corporate officers, partners, Station
managerial personnel (including the Station Management of each Station),
accountants, consultants, and counsel for each member of the Selling Group as
Buyer deems reasonably necessary or appropriate for the purposes of
familiarizing itself with each member of the Selling Group and each of the
Stations, including the right to visit each Station; provided that such Station
visits shall be conducted in a manner intended to minimize the disruption to
the operations of the Station. In furtherance of the foregoing, each member of
the Selling Group shall authorize and instruct their respective accountants to
meet with Buyer and its representatives, including its independent public
accountants, to discuss the business and accounts of each member of the Selling
Group and to make available (with the opportunity to make copies) to Buyer and
its representatives, including its independent public accountants, all the work
papers of its accountants related to their audit of the consolidated financial
statements and Tax Returns of each member of the Selling Group.
(b) Within 30 days after the end of each calendar month,
Seller shall deliver to Buyer, for each of the Stations and for Seller, monthly
operating statements (in a form consistent with the monthly operating
statements previously supplied to Buyer) prepared in the ordinary course of
business for internal purposes, including comparisons to comparable prior year
periods and the current year budget. In addition, within 45 days after the end
of each calendar quarter, Seller shall deliver to Buyer, for each of the
Stations, quarterly statements prepared in the ordinary course for internal
purposes containing a detailed listing of all trade and barter agreements of
each Station showing the status of all such agreements as of the end of the
quarter. Further, Point, at its sole costs and expenses, on or before February
10, 1997, shall deliver to Buyer copies of its audited balance sheet as of
December 31, 1996, together with the related audited statements of income, cash
flows and changes in partners' equity of Point for the period then ended.
Seller shall deliver to Buyer the current rating books and such other ratings
information subscribed to by it, including Arbitrends, Accuratings or any other
written information reflective of the quantitative or qualitative nature of the
audiences of each Station, upon receipt of the same by Seller. Seller shall
instruct the Station Management of each Station to provide such information and
reports to Buyer's corporate officers promptly upon receipt by such Station
Management. In addition, Seller will provide Buyer with copies of each
Station's weekly sales pacing reports, with comparisons to sales pacing in the
corresponding period of the prior year, as soon as the same become available.
(c) Without duplication of Section 5.2(b), at such time as
any member of the Selling Group provides the same to their respective lenders,
such member of the Selling Group shall
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provide Buyer with copies of the financial statements and other information
delivered by it to its lenders.
5.3. Assistance. If Buyer requests, each member of the Selling
Group will cooperate, and will cause their accountants to cooperate, in all
reasonable respects with any financing efforts of Buyer or its Affiliate,
including providing assistance in the preparation of one or more registration
statements or other offering documents relating to debt and/or equity financing
and any other filings that may be made by Buyer or its Affiliate with the SEC,
all at the sole expense of Buyer. Midcontinent shall allow Buyer's independent
public accountants to conduct an audit of the books and records of Midcontinent
for purposes of preparing an audited balance sheet for the twelve month period
ended December 31, 1996 for the Midcontinent Stations, together with related
audited statements of income, cash flows and changes in stockholder's equity
for such period. The costs and expenses of such independent public accountants
incurred in connection with such audit shall be borne by Buyer. Midcontinent
shall cooperate with Buyer's independent public accountants in the conduct of
the above described audit to the extent that may be necessary so as to allow
such audit to be completed on or before February 10, 1997. In addition, each
member of the Selling Group (a) shall furnish to their respective independent
accountants (or, if requested by Buyer, to Buyer's independent public
accountants) such customary management representation letters as such
accountants may require as a condition to their execution of any required
accountants' consents necessary in connection with the delivery of any
"comfort" letters requested by financing sources of Buyer or its Affiliates and
(b) shall furnish to Buyer all financial statements (audited and unaudited) and
other information in the possession of any member of the Selling Group or their
respective representatives or agents as Buyer shall reasonably determine is
necessary or appropriate for the preparation of such offering documents,
registration statements or filings. In accordance with Article XI, Buyer will
indemnify and hold harmless each member of the Selling Group and their
officers, directors, and controlling Persons against any and all claims,
losses, liabilities, damages, costs, or expenses (including reasonable
attorneys' fees and expenses) that may arise out of or with respect to the
financing efforts of Buyer or its Affiliates, including any registration
statement, prospectus, offering documents, and other filings related thereto;
provided, however, that subject to the limitations and provisions of this
Agreement, nothing herein shall prevent Buyer from asserting any claim for
breach of representation or warranty under this Agreement.
5.4. Compliance With Station Licenses. Each member of the Selling
Group shall cause each of the Stations to be operated in accordance with the
applicable Station Licenses and all applicable rules and regulations of the FCC
and in compliance in all material respects with all other applicable laws,
regulations, rules, and orders. Each member of the Selling Group shall use
commercially reasonable efforts to not cause or permit any of the Station
Licenses to expire or be surrendered, adversely modified, or terminated. Each
member of the Selling Group shall file or cause to be filed with the FCC all
applications (including license renewals) or other documents required to be
filed in connection with the operation of the Stations. In addition, if
requested by Buyer and at Buyer's expense, each member of the Selling Group
shall file or cause to be filed with the FCC applications for new, specifically
identified frequencies that may be useful in connection with the operation of
the Stations. Should the FCC institute any proceedings for the suspension,
revocation or adverse modification of any of the Station Licenses, each member
of the Selling Group
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will use commercially reasonable efforts to promptly contest such proceedings
and to seek to have such proceedings terminated in a manner that is favorable
to the Stations. Each member of the Selling Group will use commercially
reasonable efforts to maintain the FCC construction permits (if any) listed in
Schedule 3.1(g) in effect until the applicable construction projects are
complete and to diligently prosecute all pending FCC applications listed in
Schedule 3.1(g). If any member of the Selling Group (or their respective FCC
counsel) receives an administrative or other order or notification relating to
any violation or claimed violation of the rules and regulations of the FCC, or
of any other Governmental Entity, that could affect the ability of any member
of the Selling Group to consummate the transactions contemplated hereby, or
should any member of the Selling Group (or their respective FCC counsel) become
aware of any fact relating to the qualifications of Buyer that reasonably could
be expected to cause the FCC to withhold its consent to the assignment of the
Station Licenses, the member shall promptly notify Buyer in writing and use
commercially reasonable efforts to take such steps as may be necessary to
remove any such impediment to the transactions contemplated by this Agreement.
5.5. Notification of Certain Matters. Each member of the Selling
Group shall give prompt written notice to Buyer of (a) the occurrence, or
failure to occur, of any event of which any member of the Selling Group becomes
aware that has caused or that would be likely to cause any representation or
warranty of any member of the Selling Group contained in this Agreement to be
untrue or inaccurate in any material respect at any time from the date hereof
to the Closing Date, (b) the failure of any member of the Selling Group, or any
officer, director, partner, employee, or agent thereof, to comply with or
satisfy in any material respect any covenant, condition, or agreement to be
complied with or satisfied by it hereunder, (c) the occurrence of a Station
Event (as defined in Section 9.1), and (d) the occurrence of any threat by any
officer of any member of the Selling Group or any General Manager, Station
Manager, General Sales Manager or Programming Director of a Station to resign
or otherwise terminate his employment or independent contractor relationship
with Seller. No such notification shall affect the representations or
warranties of the parties or the conditions to their respective obligations
hereunder.
5.6. Third Party Consents. After the date hereof and prior to the
Closing, each member of the Selling Group shall use commercially reasonable
efforts to obtain the written Consent from any party to an agreement or
instrument identified in Schedule 3.1(o) or any other Assumed Contract which is
required to permit the consummation of the transactions contemplated hereby.
5.7. Richard P. Verne Consulting Agreement. At the Closing, Buyer
shall, and the Selling Group shall cause Richard P. Verne to, execute and
deliver the Consulting Agreement.
5.8. Confidential Information. Each member of the Selling Group
acknowledges that, following the Closing, the confidential information and data
obtained or possessed by such member concerning the business affairs of the
Stations (the "Confidential Information") will be the property of Buyer and not
the Selling Group. Therefore, each such member agrees that it will not disclose
to any Person or use for its own account or the account of any other Person any
of the Confidential Information unless and to the extent that such Confidential
Information is (a) required to be disclosed by law or pursuant to a judicial
order or decree or (b) becomes generally known to and
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available for use by the public otherwise than as a result of any such member's
act or omission to act. Each such member further agrees to deliver to Buyer, at
any time Buyer may request within six years after the Closing Date, all
memoranda, notes, plans, records, reports, and other documents (and copies
thereof) relating to the conduct of the Stations which such member may then
possess or control.
ARTICLE VI
COVENANTS OF BUYER
6.1. Notification of Certain Matters. If Buyer (or its FCC counsel)
receives an administrative or other order or notification relating to any
violation or claimed violation of the rules and regulations of the FCC, or of
any Governmental Entity, that could affect Buyer's ability to consummate the
transactions contemplated hereby, or should Buyer (or its FCC counsel) become
aware of any fact relating to the qualifications of Buyer that reasonably could
be expected to cause the FCC to withhold its consent to the assignment of the
Station Licenses, Buyer shall promptly notify Seller thereof and shall use
commercially reasonable efforts to take such steps as may be necessary to
remove any such impediment to the transactions contemplated by this Agreement;
provided that Buyer shall not be required pursuant to this Section 6.1 to
divest itself or cause any Affiliate thereof to divest itself of any media
business or interest therein. In addition, Buyer shall give to Seller prompt
written notice of (a) the occurrence, or failure to occur, of any event of
which it becomes aware that has caused or that would be likely to cause any
representation or warranty of Buyer contained in this Agreement to be untrue or
inaccurate at any time from the date hereof to the Closing Date and (b) the
failure of Buyer, or any officer, director, employee, or agent thereof, to
comply with or satisfy in any material respect any covenant, condition, or
agreement to be complied with or satisfied by it hereunder. No such
notification shall affect the representations or warranties of the parties or
the conditions to their respective obligations hereunder.
6.2. Employee Matters. Buyer will use its reasonable efforts to
determine at least ten days prior to the Closing Date those employees of Seller
whom it desires to extend offers of employment. Any offers so extended by Buyer
shall be on such terms and conditions that Buyer shall determine in its sole
discretion. Buyer will give Seller prompt notice of the names of any employee
of Seller who Buyer has determined not to extend an offer of employment. Seller
waives any claims against Buyer and any of Seller's employees who are extended
an offer of employment by Buyer arising under any employment agreement or
noncompete agreement between such person and Seller.
ARTICLE VII
MUTUAL COVENANTS
7.1. Application for FCC Consents. On or before February 13, 1997,
Buyer and Seller (and if necessary, Point and Midcontinent and any of their
respective Affiliates) will join in one or more applications filed with the FCC
requesting the FCC's written consent to the assignment of the FCC Licenses
pursuant to this Agreement (the "Applications"). The parties will take all
proper steps
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reasonably necessary (a) to diligently prosecute the Applications
and (b) to obtain the FCC Consents; provided that Buyer shall not be required
pursuant to this Section 6.1 to divest itself or cause any Affiliates thereof
to divest itself of any media business or interest therein. The failure by
either party to timely file or diligently prosecute its portion of any
Application shall be a material breach of this Agreement.
7.2. Control of Stations. This Agreement will not be consummated
until after the FCC Consents with respect to the Applications referred to in
Section 7.1 are granted and, unless waived by Buyer, have become Final Orders.
Between the date of this Agreement and the Closing Date, Buyer will not
directly or indirectly control, supervise or direct the operation of the
Stations. Further, between the date of this Agreement and the Closing Date,
Seller shall, directly or indirectly, supervise or control the operation of the
Stations. Such operation shall be the sole responsibility of Seller.
7.3. Other Governmental Consents. Promptly following the execution
of this Agreement, the parties shall proceed to prepare and file with the
appropriate Governmental Entities (other than the FCC) such requests, reports,
or notifications as may be required in connection with this Agreement and shall
diligently and expeditiously prosecute, and shall cooperate fully with each
other in the prosecution of, such matters. Without limiting the foregoing,
promptly following the execution of this Agreement, the parties shall (a) file
with the Federal Trade Commission and the Antitrust Division of the Department
of Justice the notifications and other information (if any) required to be
filed under the HSR Act with respect to the transactions contemplated hereby
and shall use their commercially reasonable efforts to cause all applicable
waiting periods under the HSR Act to expire or be terminated as of the earliest
possible date and (b) make all necessary filings and, thereafter, make any
other required submissions with respect to the transactions contemplated hereby
under the Securities Act and the rules and regulations thereunder and any other
applicable federal or state securities laws. Nothing in this Section 7.3 shall
require Buyer to divest itself or to cause any Affiliate thereof to divest
itself of any media business or interest therein.
7.4. Accounts Receivable. All Accounts Receivable shall remain the
property of Seller. Seller hereby authorizes Buyer, however, for purposes of
collection only, to collect such receivables for a period of 180 days after the
Closing. Seller shall deliver to Buyer a complete and detailed statement of
each account within three days after Closing, and Buyer shall use its
reasonable efforts, consistent with its customary collection practices for its
own accounts receivable, without compensation, to collect each Account
Receivable during said 180 days. During that period, Buyer shall provide to
Seller a detailed monthly statement of the Accounts Receivable showing amounts
collected to date and amounts outstanding as of the same date and, within 20
days after the end of each month, shall deliver to Seller the Accounts
Receivable report and a check for the amounts collected during the prior month.
All payments received by Buyer during the 180-day period following the Closing
Date from a Person obligated with respect to an Account Receivable shall be
applied first to Seller's account and only after full satisfaction thereof to
Buyer's account; provided, however, that if such Person has, in the reasonable
opinion of Buyer, a legitimate dispute with respect to such Account Receivable
and Buyer also has an account receivable from such Person, all payments
received by Buyer during the 180-day period following the Closing Date from
such Person
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shall be applied first to Buyer's account and only after the earlier to occur
of full satisfaction of Buyer's account or resolution of such dispute, to
Seller's account. Buyer shall not be required to refer any Account Receivable
to a collection agency or an attorney for collection, nor shall it compromise,
settle, or adjust any Account Receivable having a value in excess of $5,000
without receiving the approval of Seller. Seller shall take no action with
respect to the Accounts Receivable, such as litigation, until the expiration of
said 180-day period. Following the expiration of said 180- day period, Seller
shall be free to take such action as Seller may in its sole discretion
determine to collect any Accounts Receivable then outstanding.
7.5. Brokers or Finders. The Selling Group represents and warrants
to Buyer that, other than the previously disclosed fee payable to Americom,
which fee shall be paid in accordance with the provisions of Section 12.7, no
agent, broker, investment banker, or other Person engaged by Seller is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee payable by Buyer or Seller in connection with any of the transactions
contemplated by this Agreement. Buyer represents and warrants to the Selling
Group that Buyer has not engaged any broker, investment banker or other Person
that will be entitled to any broker's or finder's fee or any other commissions
or similar fee from Seller in connection with any of the transactions
contemplated by this Agreement.
7.6. Bulk Sales Law. The parties do not believe that any bulk sales
or fraudulent conveyance statute applies to the transactions contemplated by
this Agreement. Buyer therefore waives compliance by the Selling Group with the
requirements of any such statutes and, in accordance with Article XI, each
member of the Selling Group agrees to indemnify and hold Buyer harmless against
any claim made against Buyer by any creditor of any member of the Selling Group
as a result of a failure to comply with any such statute and all losses,
liabilities, damages, costs, or expenses (including reasonable attorney's fees
and expenses) arising out of any such claim.
7.7. Risk of Loss.
(a) The risk of any loss, damage, impairment, confiscation,
or condemnation of any of the Assets from any cause whatsoever shall be borne
by Seller at all times prior to the Closing. In the event of any such loss,
damage, impairment, confiscation, or condemnation, whether or not covered by
insurance, Seller shall promptly notify Buyer of such loss, damage, impairment,
confiscation, or condemnation.
(b) If Seller, at its expense, repairs, replaces, or restores
such Assets to their prior condition to the satisfaction of Buyer before the
Closing, Seller shall be entitled to all insurance proceeds and condemnation
awards, if any, by reason of such award or loss.
(c) If Seller does not or cannot restore or replace lost,
damaged, impaired, confiscated or condemned Assets having a replacement cost in
excess of $250,000 in the aggregate or informs Buyer that it does not intend to
restore or replace such Assets, Buyer may at its option:
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(i) terminate this Agreement by notice forthwith
without any further obligation hereunder; or
(ii) proceed to the Closing of this Agreement
without Seller completing the restoration and replacement of such
Assets, provided that Seller shall assign all rights under applicable
insurance policies and condemnation awards, if any, to Buyer; and in
such event, Seller shall have no further liability with respect to the
condition of the Assets directly attributable to the loss, damage,
impairment, confiscation, or condemnation.
(d) Buyer will notify Seller of a decision under the
options described in Section 7.7(c)(i) or (ii) above within ten Business Days
after Seller's notice to Buyer of the damage or destruction of Assets and the
estimate of the costs to repair or replace the Assets; provided, however, that
if Seller states that it intends to restore the damaged Assets and if Seller
has not restored such damaged Assets immediately prior to the Closing Date,
notwithstanding Buyer's prior delivery of a notice to proceed pursuant to this
Section 7.7(d), Buyer shall have the right to either postpone the Closing or
terminate this Agreement by notice forthwith.
7.8. Additional Agreements. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use its commercially reasonable
efforts to take or cause to be taken all action, and to do or cause to be done
all things, necessary, proper, or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. If at any time after the Closing Date any further action is
necessary or desirable to carry out the purposes of this Agreement, the parties
to this Agreement and their duly authorized representatives shall take all such
action. Without limiting the generality of the foregoing, if, after the Closing
Date, Buyer seeks indemnification or recovery from one or more other parties to
an Assumed Contract or otherwise seeks to enforce such Assumed Contract and, in
order to obtain such indemnification, recovery or enforcement, it is necessary
for any member of the Selling Group to initiate a suit, participate in any
enforcement proceeding or otherwise provide assistance to Buyer, then, at the
request and the sole expense of Buyer, such member shall take such action as
Buyer may reasonable request in connection with Buyer's efforts to obtain such
indemnification, recovery or enforcement.
ARTICLE VIII
CONDITIONS PRECEDENT
8.1. Conditions to Each Party's Obligation. The respective
obligations of Buyer and of each member of the Selling Group to effect the
transactions contemplated hereby are subject to the satisfaction (or, in the
case of the condition specified in the last sentence of Section 8.l(a), the
waiver by Buyer) on or prior to the Closing Date of the following conditions:
(a) Consents and Approvals. All authorizations, consents,
orders, or approvals of, or declarations or filings with, or expirations of
waiting periods imposed by, any Governmental Entity necessary for the
consummation of the transactions contemplated by this Agreement shall
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have been filed, occurred, or been obtained. The FCC Consents shall have become
Final Orders and shall be in form and substance reasonably satisfactory to
Buyer.
(b) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction, or other order issued
by any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated hereby shall be in
effect.
(c) No Action. No action shall have been taken nor any
statute, rule, or regulation shall have been enacted by any Governmental Entity
that makes the consummation of the transactions contemplated hereby illegal.
8.2. Conditions to Obligation of Buyer. The obligation of Buyer to
effect the transactions contemplated hereby is subject to the satisfaction of
the following conditions unless waived, in whole or in part, by Buyer:
(a) Representations and Warranties. The representations
and warranties of each member of the Selling Group set forth in this Agreement
shall be true and correct in all material respects (provided that any
representation or warranty of any member of the Selling Group contained herein
that is qualified by a materiality standard or a Material Adverse Effect
qualification shall not be further qualified hereby) as of the date of this
Agreement and as of the Closing Date as though made on and as of the Closing
Date, and Buyer shall have received a certificate to such effect signed on
behalf of each member of the Selling Group by the chief executive officer or by
the chief financial officer of each entity (or in the case of each of Point and
Seller, by the chief executive officer or chief financial officer of the
general partner(s) thereof acting in such capacity).
(b) Performance of Obligations. Each member of the
Selling Group shall have performed in all material respects all obligations
required to be performed by it under this Agreement prior to the Closing Date,
and Buyer shall have received a certificate to such effect signed on behalf of
each member of the Selling Group by the chief executive officer or by the chief
financial officer of each entity (or in the case of each of Point and Seller,
by the chief executive officer or chief financial officer of the general
partner(s) thereof acting in such capacity).
(c) Consents Under Agreements. Buyer shall have been
furnished with evidence reasonably satisfactory to it of the consent or
approval of each Person that is a party to a Contract identified in Schedule
3.1(o) whose consent or approval shall be required in order to permit the
consummation of the transactions contemplated hereby, and such consent or
approval shall be in form and substance satisfactory to Buyer.
(d) Legal Opinions. Buyer shall have received from (i)
Stroock & Stroock & Lavan, counsel to Point and Seller, (ii) Schwartz, Woods &
Miller, special FCC counsel to Seller and (iii) Leonard, Street and Deinard,
counsel to Midcontinent, one or more opinions dated the Closing Date, in
substantially the forms attached as Exhibits G, H and I, hereto, respectively,
which
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opinions shall expressly provide that they may be relied upon by Buyer's
lenders, underwriters, or other sources of financing with respect to the
transactions contemplated hereby.
(e) Real Estate Title Commitment. Within 60 days after
the date of this Agreement, Seller, at its sole cost and expense, shall have
provided Buyer with a preliminary report on title to the Owned Real Property
covering a date not earlier than January 2, 1997, issued by the Title Company,
which preliminary report shall contain a commitment (the "Title Commitment") of
the Title Company to issue an owner's title insurance policy at Seller's cost
as Buyer may reasonably require (the "Title Policy") insuring the fee simple
absolute interest of Seller in the Owned Real Property. The Title Commitment
shall be in such amount as set forth in the Title Policy issued by the Title
Company on January 2, 1997, with respect to the Owned Real Property.
(f) Survey. If requested by Buyer, Seller, at its sole
cost and expense, shall have obtained a recent survey of the Owned Real
Property which shall: (i) be prepared by a registered land surveyor reasonably
acceptable to Buyer; (ii) be certified to the Title Company and to Buyer; and
(iii) show with respect to the Owned Real Property: (A) the legal description
of the Owned Real Property (which shall be the same as the Title Policy
pertaining thereto); (B) all buildings, structures and improvements thereon and
all restrictions of record and other restrictions that have been established by
an applicable zoning or building code or ordinance and all easements or rights
of way across or serving the Owned Real Property (including any off-site
easements affecting or appurtenant thereto); (C) no encroachments upon the
Owned Real Property or adjoining parcels by buildings, structures or
improvements and no other survey defects; (D) access to such parcel from a
public street; and (E) a flood certification reasonably satisfactory to Buyer
to the effect that no portion of the Owned Real Property is located within a
flood hazard area.
(g) Closing Deliveries. All documents, instruments,
certificates or other items required to be delivered by any member of the
Selling Group and Richard P. Verne, as applicable, pursuant to Section 9.2
shall have been delivered.
8.3. Conditions to Obligations of the Seller. The obligation of
Seller to effect the transactions contemplated hereby is subject to the
satisfaction of the following conditions unless waived, in whole or in part, by
Seller.
(a) Representations and Warranties. The representations
and warranties of Buyer set forth in this Agreement shall be true and correct
in all material respects (provided that any representation or warranty of Buyer
contained herein that is qualified by a materiality standard shall not be
further qualified hereby) as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date, and Seller shall
have received a certificate to such effect signed on behalf of Buyer by the
chief executive officer or by the chief financial officer of Buyer.
(b) Performance of Obligations of Buyer. Buyer shall
have performed in all material respects the obligations required to be
performed by it under this Agreement prior to the Closing Date, and Seller
shall have received a certificate to such effect signed on behalf of Buyer by
the chief executive officer or by the chief financial officer of Buyer.
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(c) Legal Opinions. Seller shall have received from
Vinson & Elkins L.L.P., counsel to Buyer, an opinion dated the Closing Date in
substantially the form attached as Exhibit F.
(d) Closing Deliveries. All documents, instruments,
certificates or other items required to be delivered by Buyer pursuant to
Section 9.2 shall have been delivered.
ARTICLE IX
CLOSING
9.1. Closing. Subject to the right of Buyer to defer the Closing as
provided in this Section 9.1 and subject to the satisfaction or waiver of the
conditions set forth in Article VIII, or at such other place and time as Buyer
and Seller may agree, the Closing will take place at the offices of Vinson &
Elkins L.L.P., Dallas, Texas, at 10:00 a.m., local time, on a date selected by
Buyer on five Business Days notice to Seller, which date shall be on or before
the later of July 15, 1997 or the 10th Business Day after the day on which the
FCC Consents have been granted by Final Order, (the "Target Closing Date").
Notwithstanding the foregoing, Buyer may, at its option, defer the Closing Date
to a date no later than October 31, 1997 by giving Seller notice of such
deferral (a "Deferral Notice") at any time prior to the Target Closing Date. At
any time after the giving of a Deferral Notice, the Buyer may withdraw the
Deferral Notice by giving Seller notice of such withdrawal and subject to the
satisfaction or waiver of the conditions set forth in Article VIII, the Closing
shall take place at the place and time provided above on the fifth Business Day
after the giving of such notice of withdrawal. Upon the giving of a Deferral
Notice, the Purchase Price shall be automatically increased by an amount equal
to $2,777 per day for each day calculated to and including the day immediately
prior to the Closing Date that the Closing Date is delayed from July 15, 1997
by reason of Buyer's deferral of the Closing pursuant to such Deferral Notice.
Notwithstanding the foregoing:
(a) In the case of a Trading Event, a Banking Event or a
Station Event, (i) if the Cessation Date is less than 60 days after
the Event Date, then Buyer, in its discretion, may extend the Closing
Date to a date not later than the 30th day after the Cessation Date,
(ii) if the Cessation Date is more than 60, but less than 90, days
after the Event Date, then Buyer, in its discretion, shall elect on
the first to occur of the 10th Business Day after the Cessation Date
or the 90th day (or, if not a Business Day, the next Business Day)
after the Event Date (the "Election Date") to either (A) close the
transactions contemplated by this Agreement on the later to occur of
the fifth Business Day after the Election Date or the 90th day (or, if
not a Business Day, the next Business Day) after the Event Date or (B)
terminate this Agreement, and (iii) if the Cessation Date has not
occurred by the 90th day after the Event Date (or, if not a Business
Day, the next Business Day), then Buyer, in its discretion, shall
elect, not later than the 95th day after the Event Date (or if not a
Business Day, the next Business Day), either to (1) terminate this
Agreement or (2) close the transactions contemplated by this Agreement
on the fifth Business Day after the date of such election;
(b) In the case of a Conflict Event, Buyer, in its
discretion, may extend the Closing Date to a date not to exceed the
90th day after the Event Date;
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(c) If a Cure Period has not ended on or before the
Closing Date, the Closing Date shall be extended to the earlier to
occur of five Business Days after the cure or waiver of the breach
giving rise to the Cure Period or the end of the Cure Period; and
(d) If the Closing does not occur within 20 days after
the date of the Final Order, the parties shall request approval from
the FCC to extend the Closing so that the Closing contemplated
hereunder will not violate any FCC rules or regulations.
For purposes of this Agreement, a "Trading Event" shall mean
that trading generally in securities on the New York Stock Exchange
shall have been suspended or materially limited; a "Banking Event"
shall mean that a general moratorium on commercial banking activities
in New York, New York shall have been declared by any federal or state
authority; a "Conflict Event" shall mean the occurrence of any major
armed conflict involving a substantial participation by the armed
forces of the United States of America that has an adverse affect on
the availability or cost of either private or public debt or equity
financing; a "Station Event" shall mean any act of nature (including
fires, floods, earthquakes, and storms), calamity, casualty,
condemnation, or the act or omission to act of any state or federal
regulatory agency having jurisdiction over a Station that has caused
one or more Stations representing an aggregate of at least 3% of the
consolidated gross revenues of the Selling Group for the last full 12
calendar months prior to the Station Event not to be operating in a
manner substantially consistent with the operations conducted before
such act of nature, calamity, casualty, condemnation, or agency action
or omission occurred or not to be in compliance in all material
respects with its or their respective Station License(s); an "Event
Date" shall mean the date on which a Trading Event, Banking Event,
Conflict Event, or a Station Event occurs; and a "Cessation Date"
shall mean the date on which a Trading Event, Banking Event, Conflict
Event, or a Station Event ends. Pro forma adjustments shall be made,
for purposes of calculating gross revenues for the 12-month period
specified in the definition of "Station Event" with respect to any
radio broadcast station acquired during such 12-month period, assuming
that such station was acquired at the beginning of such 12-month
period and shall include the gross revenues of such station for the
full 12-month period.
9.2. Actions to Occur at Closing.
(a) At the Closing, Buyer shall deliver to Seller (or to
the Escrow Agent, as indicated) the following:
(i) Purchase Price. The Purchase Price by wire
transfer of immediately available funds (less the Holdback Amount);
(ii) Holdback Amount. The Holdback Amount to
the Escrow Agent by wire transfer of immediately available funds.
(iii) Certificates. The certificates referred to
in Section 8.3(a) and (b);
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(iv) Assumption Agreement. A counterpart of the
Assumption Agreement executed by Buyer;
(v) Indemnification Escrow Agreement. A
counterpart of the Indemnification Escrow Agreement executed by Buyer;
(vi) Consulting Agreement. A counterpart of the
Consulting Agreement executed by Buyer; and
(vii) Non-Competition Agreement. A counterpart
of the Non-Competition Agreement executed by Buyer.
(viii) Legal Opinion. The opinion of counsel
referred to in Section 8.3(c).
(b) At the Closing, Seller and the other members of the
Selling Group shall deliver to Buyer the following:
(i) Certificates. The certificates described
in Section 8.2(a) and (b);
(ii) Assumption Agreement. A counterpart of the
Assumption Agreement executed by Seller;
(iii) Indemnification Escrow Agreement. A
counterpart of the Indemnification Escrow Agreement executed by Seller;
(iv) Non-Competition Agreement. A counterpart
of the Non-Competition Agreement executed by each member of the Selling Group;
(v) Legal Opinions. The opinions of counsel
referred to in Section 8.2(d);
(vi) Transfer Documents. The duly executed Bill
of Sale and Assignment, together with any other assignments and other transfer
documents as requested by Buyer;
(vii) Consents; Acknowledgments. The original of
each Consent;
(viii) Estoppel Certificates. Estoppel
certificates from the lessor(s) of the Leased Real Property in a form and
substance satisfactory to Buyer and its lenders;
(ix) Licenses, Contracts, Business Records, Etc.
To the extent they are in the possession of any member of the Selling Group,
copies of all Licenses, Assumed Contracts, blueprints, schematics, working
drawings, plans, projections, statistics, engineering records and all files and
records used by any member of the Selling Group in connection with a Station's
business and operations, which copies shall be available at the Closing or at
the applicable Station's principal business offices;
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(x) Warranty Deed. A Warranty Deed executed by
Seller conveying fee simple title to the Owned Real Property to Buyer, subject
only to the Permitted Encumbrances, in proper statutory form for recording
together with documentary stamps affixed thereto;
(xi) No-Lien Affidavit. A standard "No-Lien
Affidavit" executed by Seller, which shall be in the recordable form and
otherwise satisfactory to the Title Company in order to delete the standard
printed exceptions relating to mechanics' liens and parties-in-possession;
(xii) GAP Affidavit. An affidavit, if requested
by the Title Company, as may be necessary to insure the gap between the
effective date of the Title Commitment to and through the date of the
recordation of the deed to the Owned Real Property; and
(xiii) Title Requirements. Such other documents
as shall be reasonably required by the Title Company as called for or required
under the terms of any title policy obtained or issued to Buyer.
(c) At the Closing, Seller and Buyer shall instruct the
Escrow Agent to deliver, and it shall deliver, the Deposit Letter of Credit to
Buyer.
(d) At the Closing, Buyer shall receive (i) from each member
of the Selling Group a non-foreign affidavit within the meaning of section
1445(b)(2) of the Code or (ii) a statement in conformance with Treas. Reg.
ss.1.445-11T(d)(2)(i) from (A) Point and Midcontinent in their respective
capacity as a general partner of Seller and (B) the general partner of Point.
(e) At the Closing, Richard P. Verne shall deliver a
fully executed counterpart of the Consulting Agreement.
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ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
10.1. Termination. This Agreement may be terminated prior to the
Closing:
(a) by mutual consent of Buyer and Seller;
(b) by either Seller or Buyer;
(i) if there shall have been any material
breach (provided that any representation or warranty of a party contained
herein that is qualified by a materiality standard of a Material Adverse Effect
qualification shall not be further qualified hereby) of any representation,
warranty, covenant, or agreement, on the part of Buyer, on the one hand, or of
any member of the Selling Group, on the other hand, set forth in this
Agreement, which breach shall not have been cured within 20 days (the "Cure
Period") following receipt by the breaching party of written notice of such
breach;
(ii) if a court of competent jurisdiction or
other Governmental Entity shall have issued an order, decree, or ruling or
taken any other action (which order, decree or ruling the parties hereto shall
use their best efforts to lift), in each case permanently restraining,
enjoining, or otherwise prohibiting the transactions contemplated by this
Agreement, and such order, decree, ruling, or other action shall have become
final and nonappealable;
(iii) if, for any reason, the FCC denies or
dismisses any of the Applications and the time for reconsideration or court
review under the Communications Act with respect to such denial or dismissal
has expired and there is not pending with respect thereto a timely filed
petition for reconsideration or request for review;
(iv) if, for any reason, any of the Applications
is designated for an evidentiary hearing by the FCC; or
(v) if the Closing shall not have occurred by
October 31, 1997; provided, however, that the right to terminate this Agreement
under this clause (v) shall not be available to any party whose breach of this
Agreement has been the cause of, or resulted in, the failure of the Closing to
occur on or before such date; or
(c) by Buyer:
(i) pursuant to the provisions of Section 7.7;
(ii) pursuant to the provisions of Section 9.1;
or
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(iii) if the FCC grants any of the Applications
with any adverse conditions not generally imposed on grants of such
applications and the time for reconsideration or court review
under the Communications Act with respect to such adverse conditions has
expired and there is not pending with respect thereto a timely filed petition
for reconsideration or request for review.
The right of any party hereto to terminate this Agreement pursuant to this
Section 10.1 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party hereto, any Person
controlling any such party or any of their respective officers, directors,
partners, employees, accountants, consultants, legal counsel, agents, or other
representatives whether prior to or after the execution of this Agreement.
Notwithstanding anything in the foregoing to the contrary, no party that is in
material breach of this Agreement shall be entitled to terminate this Agreement
except with the consent of the other parties hereto.
10.2. Effect of Termination.
(a) In the event of a termination of this Agreement by
either Seller or Buyer as provided above, there shall be no liability on the
part of either Buyer or any member of the Selling Group, except for liability
arising out of a breach of this Agreement. If this Agreement is terminated by
Seller pursuant to Section 10.1(b)(i), the parties agree and acknowledge that
Seller will suffer damages that are not practicable to ascertain. Accordingly,
in such event and if within ten Business Days after termination of this
Agreement Seller delivers to Buyer a written demand for liquidated damages,
subject to Buyer's receipt of a counterpart of the Release executed by each
member of the Selling Group, Seller shall be entitled to the sum of $1,900,000
(or $3,150,000, if Buyer has given a Deferral Notice pursuant to Section 9.1)
as liquidated damages payable by Buyer within ten Business Days after receipt
of Seller's written demand and payable in accordance with the provisions of the
Deposit Escrow Agreement. As security for payment thereof, Buyer has,
concurrently with the execution of this Agreement, entered into the Deposit
Escrow Agreement with Seller and the Escrow Agent as provided in Section 2.7.
The parties agree that the foregoing liquidated damages are reasonable
considering all the circumstances existing as of the date hereof and constitute
the parties' good faith estimate of the actual damages reasonably expected to
result from the termination of this Agreement by Seller pursuant to Section
10.1(b)(i). The members of the Selling Group agree that, to the fullest extent
permitted by law, Seller's right to payment of such liquidated damages as
provided in this Section 10.2 shall be their sole and exclusive remedy if the
Closing does not occur with respect to any damages whatsoever that any members
of the Selling Group may suffer or allege to suffer as a result of any claim or
cause of action asserted by any members of the Selling Group relating to or
arising from breaches of the representations, warranties or covenants of Buyer
contained in this Agreement and to be made or performed at or prior to the
Closing. If this Agreement is terminated by Seller pursuant to Section
10.1(b)(i), upon Buyer's receipt of a counterpart of the Release executed by
each member of the Selling Group, Buyer and Seller shall instruct the Escrow
Agent to release the Deposit Letter of Credit to Seller. If this Agreement is
terminated either by Buyer or Seller pursuant to any provision of Section 10.1
other than a termination by Seller pursuant to Section 10.1(b)(i), then upon
Buyer's receipt of a counterpart of the Release, Buyer and Seller shall
instruct the Escrow Agent to release the Deposit Letter of Credit to Buyer.
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(b) As a condition of payment, and upon receipt of the
liquidated damages under this Section 10.2, each member of the Selling Group
hereby irrevocably and unconditionally releases, acquits, and forever
discharges Buyer and its successors, assigns, employees, agents, stockholders,
partners, subsidiaries, parent companies and other affiliates (corporate or
otherwise) (the "Released Parties") of and from any and all Released Claims,
including, without limitation, all Released Claims arising out of, based upon,
resulting from or relating to the negotiation, execution, performance, breach
or otherwise related to or arising out of the Transaction Documents or any
agreement entered into in connection therewith or related thereto. "Released
Claims" as used herein shall mean any and all charges, complaints, claims,
causes of action, promises, agreements, rights to payment, rights to any
equitable remedy, rights to any equitable subordination, demands, debts,
liabilities, express or implied contracts, obligations of payment or
performance, rights of offset or recoupment, accounts, damages, costs, losses
or expenses (including attorneys' and other professional fees and expenses)
held by any party hereto, whether known or unknown, matured or unmatured,
suspected or unsuspected, liquidated or unliquidated, absolute or contingent,
direct or derivative.
ARTICLE XI
INDEMNIFICATION
11.1. Indemnification of Buyer. Each of the members of the Selling
Group jointly and severally agree to indemnify and hold harmless the Buyer
Indemnified Parties from and against any and all Buyer Indemnified Costs.
11.2. Indemnification of the Selling Group and the Shareholders.
Buyer agrees to indemnify and hold harmless the Seller Indemnified Parties from
and against any and all Seller Indemnified Costs.
11.3. Defense of Third-Party Claims. An Indemnified Party shall
give prompt written notice to any entity or Person who is obligated to provide
indemnification hereunder (an "Indemnifying Party") of the commencement or
assertion of any action, proceeding, demand, or claim by a third party
(collectively, a "third-party action") in respect of which such Indemnified
Party shall seek indemnification hereunder. Any failure so to notify an
Indemnifying Party shall not relieve such Indemnifying Party from any liability
that it, he, or she may have to such Indemnified Party under this Article XI
unless the failure to give such notice materially and adversely prejudices such
Indemnifying Party. The Indemnifying Party shall have the right to assume
control of the defense of, settle, or otherwise dispose of such third-party
action on such terms as they deem appropriate; provided, however, that:
(a) The Indemnified Party shall be entitled, at his, her,
or its own expense, to participate in the defense of such third-party action
(provided, however, that the Indemnifying Parties shall pay the attorneys' fees
of the Indemnified Party if (i) the employment of separate counsel shall have
been authorized in writing by any such Indemnifying Party in connection with
the defense of such third-party action, (ii) the Indemnifying Parties shall not
have employed counsel
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reasonably satisfactory to the Indemnified Party to have charge of such
third-party action, (iii) the Indemnified Party shall have reasonably concluded
that there may be defenses available to such Indemnified Party that are
different from or additional to those available to the Indemnifying Party, or
(iv) the Indemnified Party's counsel shall have advised the Indemnified Party
in writing, with a copy to the Indemnifying Party, that there is a conflict of
interest that could make it inappropriate under applicable standards of
professional conduct to have common counsel);
(b) The Indemnifying Party shall obtain the prior written
approval of the Indemnified Party before entering into or making any
settlement, compromise, admission, or acknowledgment of the validity of such
third-party action or any liability in respect thereof if, pursuant to or as a
result of such settlement, compromise, admission, or acknowledgment, injunctive
or other equitable relief would be imposed against the Indemnified Party or if,
in the opinion of the Indemnified Party, such settlement, compromise,
admission, or acknowledgment could have an adverse effect on its business or,
in the case of an Indemnified Party who is a natural Person, on his or her
assets or interests;
(c) No Indemnifying Party shall consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by each claimant or plaintiff to each
Indemnified Party of a release from all liability in respect of such
third-party action; and
(d) The Indemnifying Party shall not be entitled to
control (but shall be entitled to participate at its own expense in the defense
of), and the Indemnified Party shall be entitled to have sole control over, the
defense or settlement, compromise, admission, or acknowledgment of any
third-party action (i) as to which the Indemnifying Party fails to assume the
defense within a reasonable length of time or (ii) to the extent the
third-party action seeks an order, injunction, or other equitable relief
against the Indemnified Party which, if successful, would materially adversely
affect the business, operations, assets, or financial condition of the
Indemnified Party; provided, however, that the Indemnified Party shall make no
settlement, compromise, admission, or acknowledgment that would give rise to
liability on the part of any Indemnifying Party without the prior written
consent of such Indemnifying Party.
The parties hereto shall extend reasonable cooperation in connection with the
defense of any third-party action pursuant to this Article XI and, in
connection therewith, shall furnish such records, information, and testimony
and attend such conferences, discovery proceedings, hearings, trials, and
appeals as may be reasonably requested.
11.4. Direct Claims. In any case in which an Indemnified Party seeks
indemnification hereunder that is not subject to Section 11.3 because no
third-party action is involved, the Indemnified Party shall notify the
Indemnifying Party in writing of any Indemnified Costs which such Indemnified
Party claims are subject to indemnification under the terms hereof. The failure
of the Indemnified Party to exercise promptness in such notification shall not
constitute a waiver of such claim unless the resulting delay materially
prejudices the position of the Indemnifying Party with respect to such claim.
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11.5. Escrow. On the Closing Date, Buyer and Seller will enter into
the Indemnification Escrow Agreement in accordance with which Buyer shall, at
Closing, deposit from the Purchase Price an amount equal to $1,000,000 (the
"Holdback Amount") with the Escrow Agent.
11.6. Limitations on Indemnified Representation Costs. Subject to
Section 11.7 and Section 12.17 hereof, the following provisions of this Section
11.6 shall be applicable after the time of the Closing:
(a) Minimum Loss. No Indemnifying Party shall be required
to indemnify an Indemnified Party for Indemnified Representation Costs unless
and until the aggregate amount of such Indemnified Representation Costs for
which the Indemnified Party is otherwise entitled to indemnification pursuant
to this Article XI exceeds $100,000 (the "Minimum Loss"). After the Minimum
Loss is exceeded, the Indemnified Party shall be entitled to be paid the entire
amount of its Indemnified Representation Costs in excess of (but not including)
the Minimum Loss, subject to the limitations on recovery and recourse set forth
in this Section 11.6 and in Section 11.7 below and subject to the exception
contained in Section 12.17. For purposes of determining the aggregate amount of
Minimum Loss suffered by an Indemnified Party, each representation and warranty
contained in this Agreement for which indemnification can be or is sought
hereunder shall be read (including for purposes of determining whether a breach
of such representation or warranty has occurred) without regard to materiality
(including Material Adverse Effect) qualifications that may be contained
therein. In addition, in determining whether an Indemnifying Party shall be
required to indemnify an Indemnified Party under this Article XI, once the
Minimum Loss requirement set forth in this clause (a) has been satisfied, each
representation and warranty contained in this Agreement for which
indemnification can be or is sought hereunder shall be read (including, for
purposes of determining whether a breach of such representation or warranty has
occurred) without regard to materiality (including Material Adverse Effect)
qualifications that may be contained therein.
(b) Limitation as to Time. No Indemnifying Party shall be
liable for any Indemnified Representation Costs pursuant to this Article XI
unless a written claim for indemnification in accordance with Section 11.3 or
11.4 is given by the Indemnified Party to the Indemnifying Party with respect
thereto on or before the later of (i) 460 days after the Closing Date or (ii)
October 31, 1998, except that this time limitation shall not apply to any
claims contemplated by Section 12.17.
(c) Recovery against Escrowed Funds. Subject to Section
12.17 hereof, a Buyer Indemnified Party shall be entitled to payment only out
of the Holdback Amount pursuant to the terms of this Article XI and the
Indemnification Escrow Agreement for all amounts due to a Buyer Indemnified
Party with respect to any claim by a Buyer Indemnified Party against any member
of the Selling Group for Buyer Indemnified Representation Costs payable under
this Article XI.
(d) Other Indemnified Costs. The provisions of this
Section 11.6 shall only be applicable to Indemnified Representation Costs and
shall not be applicable to any other Indemnified Costs.
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11.7. Instructions to Escrow Agent. Each member of the Selling Group
hereby covenants and agrees that at any time any member of the Selling Group is
or becomes obligated to indemnify a Buyer Indemnified Party for Buyer
Indemnified Costs under this Article XI, Seller will execute and deliver to the
Escrow Agent written instructions to release to the Buyer Indemnified Party
such portion of the Holdback Amount as is necessary to indemnify the Buyer
Indemnified Party for such Buyer Indemnified Costs.
ARTICLE XII
GENERAL PROVISIONS
12.1. Survival of Representations, Warranties, and Covenants.
Regardless of any investigation at any time made by or on behalf of any party
hereto or of any information any party may have in respect thereof, each of the
representations and warranties made hereunder or pursuant hereto or in
connection with the transactions contemplated hereby shall survive the Closing.
Except as otherwise provided in the next two sentences, the representations and
warranties set forth in this Agreement shall terminate on the later of (a) the
460th day following the Closing Date, and (b) October 31, 1998. Following the
date of termination of a representation or warranty, no claim can be brought
with respect to a breach of such representation or warranty, but no such
termination shall affect any claim for a breach of a representation or warranty
that was asserted before the date of termination. To the extent that such are
performable after the Closing, each of the covenants and agreements contained
in each of the Transaction Documents shall survive the Closing indefinitely.
12.2. Further Actions. After the Closing Date, each member of the
Selling Group shall execute and deliver such other certificates, agreements,
conveyances, and other documents and take such other action as may be
reasonably requested by Buyer in order to transfer and assign to, and vest in,
Buyer the Assets pursuant to the terms of this Agreement.
12.3. Amendment and Modification. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
12.4. Waiver of Compliance. Any failure of Buyer on the one hand,
or any member of the Selling Group, on the other hand, to comply with any
obligation, covenant, agreement, or condition contained herein may be waived
only if set forth in an instrument in writing signed by the party or parties to
be bound thereby, but such waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any other failure.
12.5. Specific Performance. The parties recognize that, in the
event Seller or any other member of the Selling Group should refuse to perform
under the provisions of this Agreement, monetary damages alone will not be
adequate. Buyer shall therefore be entitled, in addition to any other remedies
which may be available, including money damages, to obtain specific performance
of the terms of this Agreement. In the event of any action to enforce this
Agreement specifically, the members of the Selling Group hereby waive the
defense that there is an adequate remedy at law.
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12.6. Severability. If any term or other provision of this
Agreement is invalid, illegal, or incapable of being enforced by any rule of
applicable law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated herein are not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal, or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated herein are consummated as originally contemplated to the fullest
extent possible.
12.7. Expenses and Obligations. Except as otherwise expressly
provided in this Agreement or as provided by law, all costs and expenses
incurred by the parties hereto in connection with the consummation of the
transactions contemplated hereby shall be borne solely and entirely by the
party which has incurred such expenses. Notwithstanding the foregoing, (a) the
filing fees incurred in connection with the filings made pursuant to the HSR
Act shall be borne equally by Seller and Buyer, (b) the fee payable to the
Escrow Agent shall be borne as provided in the Indemnification Escrow Agreement
and the Deposit Escrow Agreement, (c) the brokerage fees payable to Americom
shall be borne equally by Seller and Buyer, provided neither Seller nor Buyer
shall be obligated for more than $200,000 of such brokerage fees, and (d) all
sales taxes arising out of the transactions contemplated by this Agreement
shall be paid by Seller. In the event of a dispute between the parties in
connection with this Agreement and the transactions contemplated hereby, each
of the parties hereto hereby agrees that the prevailing party shall be entitled
to reimbursement by the other party of reasonable legal fees and expenses
incurred in connection with any action or proceeding.
12.8. Parties in Interest. This Agreement shall be binding upon
and, except as provided below, inure solely to the benefit of each party hereto
and their successors and assigns, and nothing in this Agreement, except as set
forth below, express or implied, is intended to confer upon any other Person
(other than the Indemnified Parties as provided in Article XI) any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
12.9. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) or sent by facsimile
transmission (with electronic confirmation of receipt) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) If to Buyer, to
Point Madison Acquisition Company, Inc.
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Lawrence D. Stuart, Jr.
Facsimile: (214) 740-7313
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with a copy to
Capstar Broadcasting Partners
600 Congress Avenue
Suite 1400
Austin, Texas 78701
Attn: William S. Banowsky, Jr.
Facsimile: (512) 404-6850
Vinson & Elkins L.L.P.
2001 Ross Avenue
3700 Trammell Crow Center
Dallas, Texas 75201-2975
Attn: A. Winston Oxley
Facsimile: (214) 999-7891
(b) If to Seller or Point, to
c/o Point Communications Inc.
27 South Davis Avenue
P. O. Box 1094
Montauk, New York 11954
Attn: Richard P. Verne
Facsimile: (516) 668-4611
with a copy to
Melvin Epstein, Esq.
Stroock & Stroock & Lavan
180 Maiden Lane
New York, New York 10038
Facsimile: (212) 806-6006
(c) If to Midcontinent, to
Mark Niblick, Esq.
Executive Vice President and General Counsel
Midcontinent Media, Inc.
7900 Xerxes Avenue, South, Suite 110
Minneapolis, Minnesota 55431
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with a copy to
George Reilly, Esq.
Leonard, Street and Deinard
150 South Fifth Street, Suite 2300
Minneapolis, Minnesota 55402
Facsimile: (612) 335-1657
12.10. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
12.11. Entire Agreement. This Agreement (which term shall be deemed
to include the Exhibits and Schedules hereto and the other certificates,
documents and instruments delivered hereunder) constitutes the entire agreement
of the parties hereto and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof. There are no representations or warranties, agreements, or covenants
other than those expressly set forth in this Agreement.
12.12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN. ANY
SUIT OR PROCEEDING BROUGHT HEREUNDER SHALL BE SUBJECT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN WISCONSIN.
12.13. Public Announcements. Seller and Buyer shall consult with
each other before issuing any press release or otherwise making any public
statements with respect to this Agreement or the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation. Prior to the Closing, neither Seller nor
any other member of the Selling Group will issue any other press release or
otherwise make any public statements (other than in connection with FCC
filings) regarding this transaction, except as may be required by applicable
law.
12.14. Assignment. Neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by any of the parties
hereto, whether by operation of law or otherwise; provided, however, that (a)
upon notice to Seller and without releasing Buyer from any of its obligations
or liabilities hereunder, Buyer may assign or delegate any or all of its rights
or obligations under this Agreement to any Affiliate thereof and (b) nothing in
this Agreement shall limit Buyer's ability to make a collateral assignment of
its rights under this Agreement to any institutional lender that provides funds
to Buyer without the consent of Seller. Seller shall execute on behalf of the
Selling Group an acknowledgment of such assignment(s) and/or collateral
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assignment(s) in such forms as Buyer or its institutional lenders may from time
to time reasonably request; provided, however, that unless written notice is
given to Seller that any such collateral assignment has been foreclosed upon,
Seller shall be entitled to deal exclusively with Buyer as to any matters
arising under this Agreement or any of the other agreements delivered pursuant
hereto. In the event of such an assignment, the provisions of this Agreement
shall inure to the benefit of and be binding on Buyer's assigns.
12.15. Director and Officer Liability. The directors, officers, and
stockholders of Buyer and its Affiliates shall not have any personal liability
or obligation arising under this Agreement (including any claims that any
member of the Selling Group may assert) other than as an assignee of this
Agreement. The directors, officers, stockholders and partners of Point and
Midcontinent shall not have any personal liability or obligation arising under
this Agreement (including any claims that Buyer may assert).
12.16. No Reversionary Interest. The parties expressly agree,
pursuant to Section 73.1150 of the FCC's rules, that no member of the Selling
Group retains either the right to reassignment of any of the FCC Licenses in
the future or the right to operate or use the facilities of the Stations for
any period beyond the Closing Date.
12.17. No Waiver Relating to Claims for Fraud. The liability of any
party under Article XI shall be in addition to, and not exclusive of, any other
liability that such party may have at law or equity based on such party's
fraudulent acts or omissions. None of the provisions set forth in this
Agreement, including the provisions set forth in Section 11.6 or Section 11.7,
shall be deemed a waiver by any party to this Agreement of any right or remedy
that such party may have at law or equity based on any other party's fraudulent
acts or omissions, nor shall any such provisions limit, or be deemed to limit
(i) the amounts of recovery sought or awarded in any such claim for fraud, (ii)
the time period during which a claim for fraud may be brought, or (iii) the
recourse that any such party may seek against another party with respect to a
claim for fraud; provided, that with respect to such rights and remedies at law
or equity, the parties further acknowledge and agree that none of the
provisions of this Section 12.17, nor any reference to this Section 12.17
throughout this Agreement, shall be deemed a waiver of any defenses that may be
available in respect of actions or claims for fraud, including but not limited
to, defenses of statutes of limitations or limitations of damages. The
prevailing party in any cause of action brought by a party seeking remedies at
law or equity based upon a party's fraudulent acts or omissions shall be
entitled to recover from the non-prevailing party all attorney's fees and
expenses incurred by the prevailing party in connection with such cause of
action.
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IN WITNESS WHEREOF, Buyer and the members of the Selling Group have
caused this Agreement to be signed, all as of the date first written above.
BUYER:
POINT MADISON ACQUISITION COMPANY, INC.
-------------------------------------------------
By: Eric C. Neuman, President
SELLING GROUP:
MADISON RADIO GROUP
By: POINT COMMUNICATIONS LIMITED PARTNERSHIP,
Its General Partner
By: POINT COMMUNICATIONS, INC.,
Its General Partner
By:
------------------------------------
Richard P. Verne, President
AND
By: MIDCONTINENT BROADCASTING CO.
OF WISCONSIN, INC., Its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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POINT COMMUNICATIONS LIMITED PARTNERSHIP
By: POINT COMMUNICATIONS, INC.,
Its General Partner
By:
--------------------------------------
Richard P. Verne, President
MIDCONTINENT BROADCASTING CO. OF
WISCONSIN, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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