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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
ONE-ON-ONE SPORTS LICENSE OF ILLINOIS, L.L.C.,
ONE-ON-ONE SPORTS RADIO OF ILLINOIS, L.L.C.
AND
RADIO UNICA CORP.
FOR
RADIO STATION
WIDB (AM)
CHICAGO, ILLINOIS
DATED AS OF
FEBRUARY 22, 1999
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TABLE OF CONTENTS
PAGE
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RECITALS 1
ARTICLE 1.
DEFINITIONS AND REFERENCES 1
ARTICLE 2.
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
ADJUSTMENTS; ASSUMPTION OF LIABILITY 6
2.1. Asset Sale and Purchase of Assets 6
2.1(a) FCC Licenses 7
2.1(b) Real Property 7
2.1(c) Tangible Personal Property 7
2.1(d) Contracts 7
2.1(e) Files and Records 7
2.1(f) Third-party Claims 7
2.1(g) Permits and Licenses 7
2.2. Excluded Assets. 8
2.2(a) Third Party Claims 8
2.2(b) Personal Property Disposed of 8
2.2(c) Insurance 8
2.2(d) Certain Books and Records 8
2.2(e) Rights Under This Agreement 8
2.2(f) Excluded Contracts 8
2.2(g) Cash, Receivables and Cash
Equivalents 9
2.2(h) Intellectual Property 9
2.2(i) Off-Site Equipment 9
2.2(j) Excluded Transmitter Sites Equipment 9
2.3. Consideration 9
2.4. Escrow Deposit 9
2.5. Adjustments 10
2.6. Assumption of Liabilities 10
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY SELLERS 11
3.1. Organization and Standing 11
3.2. Authorization 11
3.3. Compliance with Laws 11
3.4. Required Consents; No Conflicts 12
3.5. Absence of Litigation 12
3.6. Real Property 12
3.6(a) Owned Real Property. 12
3.6(b) Leased Real Property. 14
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3.7. Personal Property 16
3.8. FCC Matters 17
3.9. Intellectual Property 18
3.10. Reports and Records 18
3.11. Material Contracts; Scheduled Contracts 18
3.12. Taxes 18
3.13. Financial Information. 19
3.14. Labor Relations; Employee Benefits 19
3.15. Environmental Matters 19
3.16. Insurance 20
3.17. Disclosure 20
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY BUYER 20
4.1. Organization and Standing 21
4.2. Authorization 21
4.3. Required Consents; No Conflicts 21
4.4. Absence of Litigation 22
4.5. Qualification of Buyer 22
4.6. Disclosure 22
ARTICLE 5.
PRE-CLOSING FILINGS AND UNDERTAKINGS 23
5.1. Applications for FCC Consent 23
5.2. Hart-Scott-Rodino 23
5.3. Sharing Information 23
ARTICLE 6.
COVENANTS AND AGREEMENTS OF SELLERS 24
6.1. Negative Covenants 24
6.1(a) Dispositions; Mergers 24
6.1(b) Additional Agreements 24
6.1(c) Contract Breaches 24
6.1(d) Actions Affecting FCC Licenses or
Contracts 24
6.2. Affirmative Covenants 24
6.2(a) Normal Operations 25
6.2(b) FCC Matters 25
6.2(c) Actions 25
6.2(d) Transfer Tax; Bulk Sales 25
6.2(e) Access 25
6.2(f) Encumbrances 25
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6.2(g) Insurance 25
6.2(h) Violations 25
6.2(i) Interruption in Broadcast Operations 26
6.2(j) Environmental Matters 26
6.2(k) Consents 26
6.2(l) Updating 26
6.3. Confidentiality 26
ARTICLE 7.
COVENANTS AND AGREEMENTS OF BUYER 27
7.1. Confidentiality 27
7.2. Actions 27
7.3. Access 27
7.4. Notice of Certain Events 28
ARTICLE 8.
MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLERS AND BUYER 27
8.1. Possession and Control 27
8.2. Risk of Loss 28
8.3. Allocation of Purchase Price 29
8.4. Public Announcements 29
8.5. Employee Matters 29
8.6. Unwind Agreement 29
8.7. Time Brokerage Agreement 30
8.8. Diplexing 30
8.9. Hockey Broadcasts 30
ARTICLE 9.
CONDITIONS PRECEDENT TO
BUYER'S OBLIGATION TO CLOSE 31
9.1. Representations and Covenants 31
9.2. Consents 31
9.3. Delivery of Documents 31
9.4. FCC Consent 31
9.5. HSR 31
9.6. Legal Proceedings 32
9.7. Title Insurance, Survey and Estoppel Certificates 32
9.8. Time Brokerage Agreement 32
ARTICLE 10.
CONDITIONS PRECEDENT TO
SELLERS' OBLIGATION TO CLOSE 33
10.1. Representations and Covenants 33
10.2. Delivery by Buyer 33
10.3. FCC Consent 33
10.4. HSR 33
10.5. Legal Proceedings 34
10.6. Time Brokerage Agreement 34
10.7. Call Letters 34
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ARTICLE 11.
THE CLOSING 34
11.1. Closing 34
11.2. Delivery by Sellers 35
11.2(a) Contracts, Agreements and Instruments 35
11.2(b) Consents 35
11.2(c) UCC Report 35
11.2(d) Certified Consents 36
11.2(e) Members' Certificates 36
11.2(f) Expense Payment 36
11.2(g) Opinions of Counsel 36
11.2(h) Unwind Agreement 36
11.2(i) Other Documents 36
11.3. Delivery by Buyer 36
11.3(a) Purchase Price Payment 37
11.3(b) Buyer Documents 37
11.3(c) Certified Resolutions and Corporate
Documents 37
11.3(d) Officers' Certificate 37
11.3(e) Expense Payment 37
11.3(f) Opinion of Counsel 37
11.3(g) Unwind Agreement 37
11.3(h) Grant of Call Letters 37
11.3(i) Other Documents 37
ARTICLE 12.
SURVIVAL; INDEMNIFICATION 38
12.1. Survival of Representations 38
12.2. Indemnification by Sellers 39
12.3. Indemnification by Buyer 40
12.4. Conditions of Indemnification 40
ARTICLE 13.
TERMINATION 42
13.1. Termination 42
13.2. Effect of Termination 43
ARTICLE 14.
REMEDIES 43
14.1. Default by Sellers 43
14.2. Default by Buyer 43
14.3. Specific Performance 44
14.4. Remedies Not Exclusive 44
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ARTICLE 15.
GENERAL PROVISIONS 44
15.1. Further Assurances 44
15.2. Mail 45
15.3. Brokers 45
15.4. Expenses 45
15.5. Notices 45
15.6. Waiver 47
15.7. Benefit and Assignment 47
15.8. Entire Agreement; Amendment 48
15.9. Severability 48
15.10. Headings 48
15.11. Governing Law 48
15.12. Signature in Counterparts 48
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered
into as of the 22nd day of February, 1999 by and among ONE-ON-ONE SPORTS
LICENSE OF ILLINOIS, L.L.C., a Delaware limited liability company ("One-On-One
License"), ONE-ON-ONE SPORTS RADIO OF ILLINOIS, L.L.C., a Delaware limited
liability company ("One-On-One Radio") (One-On-One License and One-On-One Radio
are collectively referred to herein as "Sellers"), and RADIO UNICA CORP., a
Delaware corporation ("Buyer").
RECITALS
WHEREAS, One-On-One License is the licensee of radio station
WIDB(AM), Chicago, Illinois, operating at 950 kHz (the "Station"); and
WHEREAS, One-On-One License is a subsidiary of One-On-One
Radio; and
WHEREAS, Sellers wish to sell, and Buyer wishes to buy, all
of the assets used or useful in connection with the ownership and operation of
the Station, other than the Excluded Assets (as defined below), all in
accordance with and subject to the terms and conditions set forth below; and
WHEREAS, One-On-One Radio and Buyer are simultaneously
entering into that certain Time Brokerage Agreement dated as of the date hereof
(the "TBA"), whereby One-On-One Radio shall make available to Buyer
substantially all of the broadcasting time on the Station from the Operational
Commencement Date (as defined in the TBA) through and including the Closing
Date (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto
hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Unless the context otherwise specifies or requires, terms
used herein shall have the respective meanings assigned thereto as follows
(such definitions to be equally applicable to both the singular and plural
forms of the terms defined). Unless otherwise specified, all references herein
to "Articles" or "Sections" are to Articles or Sections of this Agreement.
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ADDITIONAL AGREEMENTS means any and all Contracts, agreements
and leases executed and delivered by Sellers between the date hereof and the
Closing Date.
ADJUSTMENT DATE shall have the meaning specified in SECTION
2.5.
AFFILIATE means, as to any entity, any other entity which
owns, is owned by or is under common control with such entity.
ASSETS shall have the meaning specified in SECTION 2.1.
ASSIGNMENT APPLICATIONS shall have the meaning specified in
SECTION 5.1.
ASSIGNMENT OF CONTRACTS means an Assignment of Contracts,
dated as of the Closing Date and executed by Sellers, in form and substance
reasonably satisfactory to Buyer and Sellers with respect to Contracts as to
which consents have been obtained pursuant to SECTION 6.2(K).
ASSIGNMENT OF LEASES means an Assignment of Leases, dated as
of the Closing Date and executed by Sellers, in form and substance reasonably
satisfactory to Buyer and Sellers.
ASSIGNMENT OF FCC LICENSES means an Assignment of FCC
Licenses, dated as of the Closing Date and executed by One-On-One License, in
form and substance reasonably satisfactory to Buyer and Sellers.
ASSUMED LIABILITIES means the Scheduled Contracts and the
Additional Agreements, and any liabilities and agreements assumed by Buyer
hereunder.
BILL OF SALE means a Bill of Sale and Assignment of Assets,
dated as of the Closing Date and executed by Sellers, in form and substance
reasonably satisfactory to Buyer and Sellers.
BUYER DOCUMENTS means, collectively, this Agreement and any
other agreement to be executed and delivered by Buyer hereunder or as otherwise
contemplated herein.
BUYER INDEMNIFIED PARTIES shall have the meaning specified in
SECTION 12.2.
CLOSING means the closing of the purchase and sale of the
Assets (other than the Excluded Assets) and the assumption of the Assumed
Liabilities.
CLOSING DATE means the time and date on which the Closing
takes place, as established by SECTION 11.1.
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CODE means the Internal Revenue Code of 1986, as amended.
COMMUNICATIONS ACT means the Communications Act of 1934, as
amended, and the rules and regulations of the FCC promulgated pursuant thereto.
CONTRACTS shall have the meaning specified in SECTION 2.1(D).
DEEDS means the grant deed, dated as of the Closing Date and
executed by One-On-One Radio, in form and substance reasonably satisfactory to
Buyer, conveying the Owned Real Property to the Buyer in accordance with this
Agreement.
ENCUMBRANCES means any mortgages, pledges, liens, claims,
security interests, agreements, restrictions, defects in title, easements or
encumbrances.
ENVIRONMENTAL LAWS means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. Section
9601 ET SEQ.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601
ET SEQ.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802 ET
SEQ.; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section
9601 ET SEQ.; the Clean Water Act ("CWA"), 33 U.S.C. Section 1251 ET SEQ.; the
Safe Drinking Water Act, 42 U.S.C. Section 300F ET SEQ.; the Clean Air Act
("CAA"), 42 U.S.C. Section 7401 ET SEQ.; or any other applicable federal, state,
or local laws, regulations, ordinances, decrees, rules, judgments, orders or
directives now or hereinafter in effect relating to the protection of human
health, safety or the environment, or otherwise relating to Hazardous Materials
generation, production, use, storage, treatment, transportation or disposal.
ERISA mean Employee Retirement Income Security Act of 1974,
as amended.
ESCROW AGENT shall have the meaning specified in SECTION 2.4.
ESCROW AGREEMENT shall have the meaning specified in SECTION
2.4.
ESCROW DEPOSIT shall have the meaning specified in SECTION
2.4.
ESTOPPEL CERTIFICATES shall have the meaning specified in
SECTION 9.7(B).
EXCLUDED ASSETS shall have the meaning specified in SECTION
2.2.
FAA means the Federal Aviation Administration.
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FCC means the Federal Communications Commission.
FCC CONSENT means an order or orders of the FCC consenting to
the assignment to Buyer of the FCC Licenses for the Station.
FCC LICENSES shall have the meaning specified in SECTION
2.1(A).
FINAL ORDER means an FCC Consent as to which the time for
filing a request for administrative or judicial review, or for instituting
administrative review SUA SPONTE, shall have expired without any such filing
having been made or notice of such review having been issued; or, in the event
of such filing or review SUA SPONTE, as to which such filing or review shall
have been disposed of favorably to the grant and the time for seeking further
relief with respect thereto shall have expired without any request for such
further relief having been filed.
FIRPTA AFFIDAVIT means the Foreign Investment in Real
Property Tax Act Certification and Affidavit, dated as of the Closing Date and
executed by One-On-One Radio.
GAAP means generally accepted accounting principles.
GOVERNMENTAL APPROVALS shall have the meaning specified in
SECTION 3.6(A).
GOVERNMENTAL AUTHORITY means any agency, board, bureau,
court, commission, department, instrumentality or administration of the United
States government, any state government or any local or other governmental body
in a state of the United States or the District of Columbia.
HAZARDOUS MATERIALS means any wastes, substances, or
materials (whether solids, liquids or gases) that are defined or regulated as
hazardous or toxic under any Environmental Law, including without limitation,
substances defined as "hazardous wastes," "hazardous substances," "toxic
substances," "radioactive materials," or other similar designations in any
Environmental Laws. "Hazardous Materials" includes, without limitation,
polychlorinated biphenyls (PCBs), asbestos, lead-based paints and petroleum and
petroleum products.
INDEMNIFIED PARTY and INDEMNIFYING PARTY shall have the
respective meanings specified in SECTION 12.4(A).
INTELLECTUAL PROPERTY shall have the meaning specified in
SECTION 2.2(H).
IRS means the Internal Revenue Service.
LEASED IMPROVEMENTS shall have the meaning specified in
SECTION 3.6(B).
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LEASED REAL PROPERTY shall have the meaning specified in
SECTION 3.6(B).
LEASES shall have the meaning specified in SECTION 3.6(B).
LOSSES means any and all demands, claims, complaints, actions
or causes of action, suits, proceedings, investigations, arbitrations,
assessments, losses, damages (including diminution in value), liabilities,
obligations (including those arising out of any action, such as any settlement
or compromise thereof or judgment or award therein) and any costs and expenses,
including, without limitation to, interest, penalties and reasonable attorneys'
fees and disbursements.
MATERIAL ADVERSE EFFECT means, except as otherwise
specifically provided herein, any event or condition which has a material
adverse effect (financial or otherwise) on the Assets, other than the Excluded
Assets, to be acquired hereunder, taken as a whole.
MATERIAL CONTRACTS means those Scheduled Contracts that are
designated as Material Contracts in SCHEDULE 2.1(D).
ORDINARY COURSE OF BUSINESS means, with respect to Sellers,
the ordinary course of business consistent with past practices of Sellers.
PERMITTED ENCUMBRANCES means (a) easements that do not
materially adversely affect the full use and enjoyment of the Real Property for
the purposes for which it is currently used or detract from the value of the
Real Property in any material respect; (b) imperfections of title and
non-consensual encumbrances, if any, which, in the aggregate, do not detract
from the marketability or value of the properties subject thereto in any
material respect and do not impair the operations of the owner thereof; (c)
liens for taxes not yet due and payable; and (d) liens of Sellers' lenders, all
of which shall be removed at the Closing.
PURCHASE PRICE shall have the meaning specified in SECTION
2.3.
REAL PROPERTY shall have the meaning specified in SECTION
2.1(B).
SCHEDULED CONTRACTS means those Contracts listed or described
in SCHEDULE 2.1(D).
SELLERS' INDEMNIFIED PARTIES shall have the meaning specified
in SECTION 12.3.
SELLERS' TAX RETURNS means all federal, state, local, foreign
and other applicable Tax returns and declarations of estimated Tax reports
required to be filed with respect to the ownership or operation of the Station.
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STATEMENT OF EXPENSES shall have the meaning specified in
SECTION 3.13.
STATION shall have the meaning set forth in the recitals.
SURVEY shall have the meaning specified in SECTION 9.7(C).
TAXES means all federal, state and local taxes (including,
without limitation, income, profit, franchise, sales, use, real property,
personal property, ad valorem, excise, employment, social security and wage
withholding taxes) and installments of estimated taxes, assessments,
deficiencies, levies, imports, duties, license fees, registration fees,
withholdings, or other similar charges of every kind, character or description
imposed by any Governmental Authorities, and any interest, penalties or
additions to tax imposed thereon or in connection therewith.
TBA shall have the meaning set forth in the recitals.
TITLE POLICIES shall have the meaning specified in SECTION
9.7(A).
TRANSACTION DOCUMENTS means, collectively, this Agreement,
the Assignment of Leases, the Bill of Sale, the Assignment of FCC Licenses, the
Assignment of Contracts, the Grant Deed, the FIRPTA Affidavit and any other
agreements to be executed and delivered by any Sellers hereunder or as
otherwise contemplated herein.
TRANSMITTER SITES shall mean that leased site located at 1500
- - 1524 South Western Avenue, Chicago, Illinois and that owned site located at 3
East Muskegon Road, Burnham, Illinois.
WARN ACT shall have the meaning specified in SECTION 8.5.
ARTICLE 2.
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
ADJUSTMENTS; ASSUMPTION OF LIABILITY
2.1. ASSET SALE AND PURCHASE OF ASSETS.
Subject to the terms and conditions hereof and in reliance
upon the representations, warranties, covenants and agreements contained
herein, at the Closing, Sellers shall sell, assign, transfer, convey and
deliver to Buyer, and Buyer agrees to purchase from Sellers, all of Sellers'
right, title and interest in the following property, free and clear of all
mortgages, security interests, liens or similar claims by third parties (other
than Permitted Encumbrances), but excluding the Excluded Assets described in
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SECTION 2.2 (collectively, the "Assets"). Subject to the provisions of SECTIONS
2.2 and 6.1(A), Assets shall include all such assets (excluding the Excluded
Assets) existing on the date hereof and all such assets acquired between the
date hereof and midnight (Central Time) on the date immediately preceding the
Closing Date.
The Assets shall consist of all of Sellers' right, title and
interest in, to and under the following:
2.1(a) FCC LICENSES. All licenses, permits and other
authorizations issued by the FCC to Sellers for the operation of the Station
(the "FCC Licenses"), including without limitation those listed or described in
SCHEDULE 2.1(A), and all applications therefor, together with any renewals,
extensions or modifications thereof and additions thereto;
2.1(b) REAL PROPERTY. All realty, fixtures, easements,
rights of way, leasehold interests in real estate, buildings and improvements,
including any undivided interest in any of the foregoing, located at or
pertaining to the Transmitter Sites ("Real Property"), including but not
limited to those listed or described in SCHEDULE 2.1(B);
2.1(c) TANGIBLE PERSONAL PROPERTY. All of the furniture,
fixtures, furnishings, machinery, computers, equipment (mobile or otherwise),
inventory, supplies, antenna installations, towers, office materials and other
tangible property located at the Transmitter Sites used or useful in the
operation of the Station (it being expressly acknowledged that no studio
facility is used by the Station or is being conveyed to Buyer), including but
not limited to the property listed or described in SCHEDULE 2.1(C), but
excluding the property listed or described in SCHEDULE 2.2(J);
2.1(d) CONTRACTS. The contracts, commitments, plans,
agreements, leases, arrangements, undertakings and licenses, including
Additional Agreements, which relate to the ownership, operation, business or
use of the Station or any of the Assets (collectively, "Contracts") which are
listed or described in SCHEDULE 2.1(D);
2.1(e) FILES AND RECORDS. All engineering, business and
other books, customer lists, papers, logs, files and records pertaining to the
Assets, including without limitation all records required by the FCC to be kept
by the Station;
2.1(f) THIRD-PARTY CLAIMS. All rights and claims of Sellers
whether mature, contingent or otherwise, against third parties relating to the
Assets (other than the Excluded Assets), whether in tort, contract, or
otherwise, under or pursuant to all warranties, representations and guarantees
made by manufacturers, suppliers or vendors; and
2.1(g) PERMITS AND LICENSES. All permits, approvals, orders,
authorizations, consents, licenses, certificates, franchises, exemptions of, or
filings or registrations with, any court or Governmental Authority (other than
the FCC) in any jurisdiction, which have been issued or granted to or are owned
or used by Sellers in connection with the business and operation of the Station
and ownership of the Assets and all pending applications therefor.
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2.2. EXCLUDED ASSETS.
Notwithstanding anything to the contrary in this Agreement,
there shall be excluded from the Assets and retained by Sellers, to the extent
in existence at midnight (Central Time) on the date immediately preceding the
Closing Date, all assets not specified in SECTION 2.1, including the following
assets (collectively, the "Excluded Assets"):
2.2(a) THIRD PARTY CLAIMS. All rights and claims of Sellers,
including any Affiliate thereof, against third parties relating to Taxes and to
property or equipment repaired, replaced or restored by Sellers prior to the
Closing;
2.2(b) PERSONAL PROPERTY DISPOSED OF. All tangible personal
property disposed of in the Ordinary Course of Business as permitted by this
Agreement;
2.2(c) INSURANCE. All contracts of insurance and any life
insurance plans and the assets thereof, including, without limitation, prepaid
insurance expenses; and all insurance proceeds or claims of Sellers relating to
property or equipment repaired, replaced or restored by Sellers prior to the
Closing;
2.2(d) CERTAIN BOOKS AND RECORDS. All of (i) duplicated
copies of any books, records, accounts, checks, payment records, Tax records
(including payroll, unemployment, real estate and other Tax records) and other
similar books, records and information of the Sellers relating to the Assets,
(ii) all records prepared by or on behalf of Sellers in connection with the
sale of the Station, (iii) all records and documents relating to any Excluded
Assets, and (iv) all records and documents not related to the Assets or the
operation of the Station;
2.2(e) RIGHTS UNDER THIS AGREEMENT. All of the Sellers'
rights under or pursuant to this Agreement or any other rights in favor of
Sellers pursuant to the other agreements contemplated hereby;
2.2(f) EXCLUDED CONTRACTS. All Contracts that have
terminated or expired prior to the Closing in the Ordinary Course of Business
or as otherwise permitted by this Agreement and all contracts, commitments,
plans, agreements, leases, arrangements, undertakings and licenses not
identified in SCHEDULE 2.1(d), including, without limitation, all employment
agreements;
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2.2(g) CASH, RECEIVABLES AND CASH EQUIVALENTS. All cash,
inter-company receivables, account receivables, note receivables, bank
deposits, prepayments, overpayments, other cash equivalents and/or investment
securities;
2.2(h) INTELLECTUAL PROPERTY. The name "One-On-One Sports" or
any derivation thereof and all of Sellers' rights in and to the call letters of
the Station (the "Intellectual Property"), and all goodwill associated
therewith;
2.2(i) OFF-SITE EQUIPMENT. All tangible personal property not
located at the Transmitter
Sites; and
2.2(j) EXCLUDED TRANSMITTER SITES EQUIPMENT. All proprietary
satellite remote equipment relating to the Station, including, without
limitation, all equipment listed or described on SCHEDULE 2.2(J).
2.3. CONSIDERATION.
Upon the terms and subject to the satisfaction of the
conditions contained in this Agreement, in consideration for the conveyance and
assignment of the Assets described herein, in addition to the assumption of
Assumed Liabilities by Buyer as set forth in SECTION 2.6, Buyer will pay
Sellers an aggregate amount of Sixteen Million Seven Hundred Fifty Thousand
Dollars ($16,750,000) in cash, as adjusted pursuant to SECTION 2.5 (the
"Purchase Price") on the Closing Date by wire transfer of immediately available
funds to such bank or other financial institution as shall be designated by
Sellers at least one (1) business day prior to the Closing Date.
2.4. ESCROW DEPOSIT.
Upon the execution of this Agreement, Buyer shall deposit the amount
of One Million Dollars ($1,000,000) into escrow (the "Escrow Deposit"). The
total Escrow Deposit shall be held by The Chase Manhattan Bank (together with
any successor thereto, the "Escrow Agent") pursuant to the terms and conditions
of the escrow agreement executed on the date hereof (the "Escrow Agreement") in
the form of EXHIBIT A hereto. At the Closing, the Escrow Deposit and the
interest earned thereon, if any, shall be paid to Buyer. If the Closing does
not occur due to the reason specified in SECTION 14.2 hereof, the Escrow
Deposit shall be paid to Sellers as liquidated damages as specified in SECTION
14.2 and the interest earned thereon, if any, shall be paid to Buyer. If the
Closing does not occur for any other reason, the total Escrow Deposit, together
with any interest earned thereon, shall be returned to Buyer.
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2.5. ADJUSTMENTS.
The operation of the Station and the normal operating
expenses attributable thereto through midnight (Central Time) of the day
immediately preceding the Closing Date (the "Adjustment Date") shall be for the
account of Sellers and thereafter for the account of Buyer, and all such
expenses (other than expenses excluded from Assumed Liabilities, none of which
shall be payable by the Buyer) shall be allocated, charged or prorated
accordingly. Expenses for goods or services received both before and after the
Adjustment Date, power and utilities charges, commissions, license fees, and
rents and similar prepaid and deferred items shall be prorated between Sellers
and Buyer as of the Adjustment Date in accordance with GAAP. All property
taxes, special assessments and similar charges or liens imposed against the
Real Property and personal property attributable to any period of time up to
and including the Adjustment Date, whether payable in installments or
otherwise, shall be the responsibility of Sellers, and amounts payable with
respect to such special assessments, charges or liens attributable to any
period of time after the Adjustment Date shall be the responsibility of Buyer,
and such charges shall be adjusted as required hereunder. To the extent that
any of the foregoing prorations and adjustments cannot be determined as of the
Closing Date, Buyer and Sellers shall conduct a final accounting and make any
further payments, as required, on a date mutually agreed upon, but in any event
within ninety (90) days after the Closing and the net amount, if any, due to or
due from Buyer as the result of such prorations and adjustments shall be paid
to or by Buyer, as the case may be, within fifteen (15) business days following
such final accounting.
2.6. ASSUMPTION OF LIABILITIES.
2.6(a) At the Closing, Buyer shall assume and become liable
for the following: (i) the liabilities and obligations of Sellers attributable
to all periods after the Adjustment Date under the Scheduled Contracts and (ii)
the liabilities and obligations of Sellers attributable to all periods after
the Adjustment Date under any Additional Agreements entered into after the date
hereof in compliance with SECTION 6.1(B).
2.6(b) Except for (i) those liabilities and obligations
expressly assumed by Buyer pursuant to SECTION 2.6(A) hereof, (ii) those
liabilities for which Buyer has received a credit under SECTION 2.5, and (iii)
liabilities and obligations of Sellers arising under Contracts (exclusive of
Additional Agreements) which are not Scheduled Contracts but which Buyer, in
its sole discretion, elects to assume on or after the Closing Date, Buyer shall
have no responsibility for any liabilities or obligations of any kind or
description whether connected with the business and operations of the Station
or the Sellers, including to any employee of Sellers, or otherwise arising from
the ownership or operation of any of the Assets or the business and operations
of the Station or the Sellers prior to the Closing Date.
2.6(c) After the Closing Date, Sellers shall have no
responsibility (i) for any Assumed Liabilities or (ii) in connection with any
Permitted Encumbrances.
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY SELLERS
Sellers represent and warrant to Buyer as follows:
3.1. ORGANIZATION AND STANDING.
Each Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to carry on its business as now being
conducted. Each Seller has all requisite power and authority to execute and
deliver this Agreement and the other Transaction Documents and to consummate
the transactions contemplated hereby and thereby. Neither the nature of the
business of the Station, nor the character of the properties owned, leased or
otherwise held by Sellers for use in the Station's business makes any
qualification necessary in any other state, country, territory or jurisdiction
other than as set forth in SCHEDULE 3.1 and each Seller is qualified to do
business in any such jurisdictions.
3.2. AUTHORIZATION.
The execution, delivery and performance of this Agreement and
the other Transaction Documents to be executed and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate or other proceedings on the part of each
Seller and no other corporate or other proceedings or actions on the part of
either Seller, their respective managers or their respective members is
necessary therefor. This Agreement constitutes, and upon execution and delivery
each other Transaction Document will constitute, a valid and binding agreement
and obligation of each Seller, enforceable in accordance with their respective
terms.
3.3. COMPLIANCE WITH LAWS.
Sellers are not in violation of, and have not received any
notice asserting any material noncompliance by Sellers with, any applicable
statute, law, rule or regulation, whether federal, state, local or otherwise,
in connection with the ownership of the Assets. Sellers have complied and are
in compliance, in all material respects, with all laws, regulations and
governmental orders applicable to Sellers' operation of the Station and
ownership of the Assets. Sellers have obtained and hold all permits, licenses
and approvals (none of which has been rescinded and all of which are in full
force and effect) from all Governmental Authorities necessary in order to
conduct the operations of the Station in accordance with applicable law, as
presently conducted and to own, use and maintain the Assets.
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3.4. REQUIRED CONSENTS; NO CONFLICTS.
3.4(a) Except (i) as set forth in SCHEDULE 3.4(A); (ii) those
consents, approvals, authorizations, permits, filings or notifications required
in connection with the filings referred to in SECTIONS 5.1 AND 5.2; (iii) the
consents of third parties to the assignment of the Contracts as indicated on
SCHEDULE 2.1(D); and (iv) those consents, approvals, authorizations, permits,
filings or notifications which would not materially affect Sellers' ability to
consummate the transactions contemplated by this Agreement, the execution,
delivery and performance by Sellers of the Transaction Documents will not
require the consent, approval, authorization or permit of, or filing with, or
notification to any person, entity or Governmental Authority.
3.4(b) Except as set forth in SCHEDULE 3.4(B), the execution
and delivery of the Transaction Documents, the fulfillment of and the
compliance with the respective terms and provisions of each, and the
consummation of the transactions described in each, do not and will not (i)
conflict with or violate any law, regulation, order, award, judgment,
injunction or decree applicable to or affecting Sellers, the Assets (other than
the Excluded Assets) or the Station, (ii) conflict with or result in any breach
of or constitute a default (or an event which with notice or lapse of time or
both would become a default) under any contract to which either Seller is a
party or by which either Seller is bound or to which any of the Assets or the
Station is subject or affected (except with respect to consents of third
parties referred to in SECTION 3.4(A)), or result in the creation of any
Encumbrance upon the Assets, or (iii) conflict with or violate any provision of
either Seller's certificate of formation or limited liability company
agreement, except, in each case, as would not materially affect Sellers'
ability to consummate the transactions contemplated by this Agreement.
3.5. ABSENCE OF LITIGATION.
Except as set forth and described in SCHEDULE 3.5, there is
no action, suit, investigation, claim, arbitration or litigation pending or, to
the best of Sellers' knowledge, threatened against, affecting or involving the
Assets, the Station or the business and operations of the Station, or the
transactions contemplated by this Agreement or any other Transaction Document,
at law or in equity, or before or by any court, arbitrator or Governmental
Authority, and the Station is not operating under or subject to an order,
award, judgment, writ, decree, determination or injunction of any court,
arbitrator or Governmental Authority.
3.6. REAL PROPERTY.
3.6(a) OWNED REAL PROPERTY. All of the real property owned by
Sellers is identified on SCHEDULE 2.1(B) (collectively referred to herein as
the "Owned Real Property").
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(i) TITLE AND DESCRIPTION. Except as disclosed on
SCHEDULE 2.1(B), Seller has good, record and marketable fee simple title to the
Owned Real Property, in all cases free and clear of all mortgages, deeds of
trust, ground leases, security interests or similar encumbrances, liens,
assessments, leases and tenancies, licenses, claims, rights of first refusal,
options, covenants, conditions, restrictions, rights of way, easements,
judgments or other encumbrances or matters affecting title, and free of
encroachments onto or off of the Owned Real Property, except in all cases for
Permitted Encumbrances. The descriptive information concerning the Owned Real
Property set forth on SCHEDULE 2.1(B) is complete, accurate, true and correct
in all material respects.
(ii) PHYSICAL CONDITION. Except as set forth on
SCHEDULE 2.1(B), there is no defect in the physical condition of any
improvements located on or constituting a part of the Owned Real Property (the
"Improvements"). The Owned Real Property, including, without limitation, the
Improvements, is in good condition and repair and is adequate for the uses to
which it is being put, and the Owned Real Property is not in need of
maintenance or repairs except for ordinary, routine maintenance and repairs
which are not material in nature or cost. To the best of Sellers' knowledge,
the soil condition of the Owned Real Property is such that it will support all
of the improvements thereon for the foreseeable life of the improvements
without the need for unusual or new subsurface excavations, fill, footings,
caissons or other installations.
(iii) UTILITIES. To the best of Sellers' knowledge,
all water, sewer, gas, electric, telephone, drainage and other utility
equipment, facilities and services required by law or necessary for the
operation of the Owned Real Property as it is now improved and operated are
installed and connected pursuant to valid permits, are sufficient to service
the Owned Real Property as it is now improved and are in good operating
condition except in each case as will not materially interfere with or impair
the use, occupancy or operation of the Owned Real Property as it is currently
used, occupied or operated.
(iv) COMPLIANCE WITH LAW; GOVERNMENT APPROVALS.
Sellers have received no notice from any Governmental Authority of any
violation of any zoning, building, fire, water, use, health, or other law,
ordinance, code, regulation, license, permit or authorization issued in respect
of any of the Owned Real Property that has not been heretofore corrected, and
no such violation or violations now exist which would materially interfere with
or impair the use, occupancy or operation of the Owned Real Property as it is
currently used, occupied or operated. The Improvements located on or
constituting a part of the Owned Real Property and the construction,
installation, use and operation thereof (including, without limitation, the
construction, installation, use and operation of any signs located thereon) are
in compliance with all applicable municipal, state, federal or other
governmental laws, ordinances, codes, regulations, licenses, permits and
authorizations, including, without limitation, applicable zoning, building,
fire, water, use or health laws, ordinances, codes, regulations, licenses,
permits and authorizations, and there are presently in effect all certificates
of occupancy, licenses, permits and authorizations required by law, ordinance,
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code or regulation or by any governmental or private authority having
jurisdiction over the ownership or operation of the Sellers' business or any of
the Assets, including the Station and the Owned Real Property or any portion
thereof, or the occupancy thereof or any present use thereof, exclusive of the
FCC Consents (hereafter, collectively, "Governmental Approvals") except such
non-compliance as will not materially interfere with or impair the use,
occupancy or operation of the Owned Real Property as it is currently used,
occupied or operated. All Governmental Approvals required by law, ordinance,
code, regulation or otherwise to be held by the owner of any of the Owned Real
Property shall be transferred to Buyer at Closing, if and to the extent
transferrable. Except as set forth in SCHEDULE 2.1(B), the conveyance of the
Owned Real Property to Buyer includes all rights to the use of any off-site
facilities necessary to ensure compliance with all such laws, ordinances, codes
and regulations. There is legally enforceable pedestrian and vehicular access
to the Owned Real Property.
(v) REAL PROPERTY TAXES. Except as set forth in
SCHEDULE 2.1(B), Sellers have received no notice of any pending or threatened
special assessment or reassessment of all or any portion of any of the Owned
Real Property.
(vi) CONDEMNATION. There is no pending or, to the
best of Sellers' knowledge, threatened condemnation of all or any part of the
Owned Real Property.
(vii) INSURABILITY. Sellers have received no notice
from any insurance company of any material defects or inadequacies in the Owned
Real Property or any part thereof, which would materially, adversely affect the
insurability of the same or of any termination or threatened termination of any
policy of insurance.
3.6(b) LEASED REAL PROPERTY. All of the real property leased
by Sellers as tenant or lessee is identified on SCHEDULE 2.1(B) (collectively
referred to herein as the "Leased Real Property").
(i) LEASES. All of the leases of any of the Leased
Real Property (collectively, the "Leases") are as set forth on SCHEDULE 2.1(B).
The copies of the Leases set forth in SCHEDULE 2.1(B) are complete, accurate,
true and correct copies of each of the Leases. The information with respect to
each of the Leases set forth in SCHEDULE 2.1(B) is complete, accurate, true and
correct in all material respects. With respect to each of the Leases, except as
set forth on SCHEDULE 2.1(B):
(A) each of the Leases is in full force and
effect on the terms set forth therein and has not been modified, amended, or
altered, in writing or otherwise;
(B) all obligations of the landlord or
lessor under the Leases that have accrued have been performed, and no landlord
or lessor is in default under or in arrears in the payment of any sum or in the
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performance of any obligation required of it under any Lease, and no
circumstance presently exists which, with notice or the passage of time, or
both, would give rise to a default by the landlord or lessor under any Lease
except, in all cases as such as will not materially detract from the
marketability or value of the Leased Real Property and do not impair the
operations of the lessee thereof in any respect;
(C) all obligations of the tenant or lessee
under the Leases that have accrued have been performed, and neither Seller is
in default under or in arrears in the payment of any sum or in the performance
of any obligation required of it under any Lease, and no circumstance presently
exists which, with notice or the passage of time, or both, would give rise to a
default by either Seller except, in all cases, as such as will not materially
detract from the marketability or value of the Leased Real Property and do not
impair the operations of the lessee thereof in any respect; and
(D) except as set forth on SCHEDULE 2.1(B),
there are no consents of any landlord or lessor required to transfer the Leased
Real Property to Buyer.
(ii) TITLE AND DESCRIPTION. Sellers hold valid and
enforceable leasehold interests in the Leased Real Property pursuant to the
Leases, subject only to the rights of the landlord or lessor under the Leases
and Permitted Encumbrances.
(iii) PHYSICAL CONDITION. Except as set forth on
SCHEDULE 2.1(B), there is no defect in the physical condition of any
improvements located on or constituting a part of the Leased Real Property (the
"Leased Improvements"). The Leased Real Property, including, without
limitation, the Leased Improvements, is in good condition and repair and is
adequate for the uses to which it is being put, and the Leased Real Property is
not in need of maintenance or repairs except for ordinary, routine maintenance
and repairs which are not material in nature or cost. To the best of Sellers'
knowledge, the soil condition of the Leased Real Property is such that it will
support all of the improvements thereon for the foreseeable life of the
improvements without the need for unusual or new subsurface excavations, fill,
footings, caissons or other installations.
(iv) UTILITIES. To the best of Seller's knowledge,
all water, sewer, gas, electric, telephone, drainage and other utility
equipment, facilities and services required by law or necessary for the
operation of the Leased Real Property as it is now improved and operated are
installed and connected pursuant to valid permits, are sufficient to service
the Leased Real Property and are in good operating condition except in such
case as will not materially interfere with or impair the use, occupancy or
operation of the Leased Real Property as it is currently used, occupied or
operated.
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(v) COMPLIANCE WITH LAW; GOVERNMENT APPROVALS.
Sellers have received no notice from any Governmental Authority of any
violation of any zoning, building, fire, water, use, health, or other law,
ordinance, code, regulation, license, permit or authorization issued in respect
of any of the Leased Real Property that has not been heretofore corrected, and
no such violation or violations now exist that would materially interfere with
or impair the use, occupancy or operation of the Leased Real Property as it is
currently used, occupied or operated. The Leased Improvements located on or
constituting a part of the Leased Real Property and the construction,
installation, use and operation thereof (including, without limitation, the
construction, installation, use and operation of any signs located thereon) are
in compliance with all applicable municipal, state, federal or other
governmental laws, ordinances, codes, regulations, licenses, permits and
authorizations, including, without limitation, applicable zoning, building,
fire, water, use or health laws, ordinances, codes, regulations, licenses,
permits and authorizations, and there are presently in effect all Governmental
Approvals except such non-compliance as will not materially interfere with or
impair the use, occupancy or operation of the Leased Real Property as it is
currently used, occupied or operated. All Governmental Approvals required by
law, ordinance, code, regulation or otherwise to be held by the tenant of any
of the Leased Real Property shall be transferred to Buyer at Closing, if and to
the extent transferrable. Except as set forth in SCHEDULE 2.1(B), the
assignment of the Leased Real Property to Buyer includes all rights to the use
of any off-site facilities necessary to ensure compliance in all material
respects with all such laws, ordinances, codes and regulations. There is
legally enforceable pedestrian and vehicular access to the Leased Real
Property.
(vi) REAL PROPERTY TAXES. Except as set forth in
SCHEDULE 2.1(B), Sellers have received no notice of any pending or threatened
special assessment or reassessment of all or any portion of any of the Leased
Real Property.
(vii) CONDEMNATION. There is no pending or, to the
best of Sellers' knowledge, threatened condemnation of all or any part of the
Leased Real Property.
(viii) INSURABILITY. Sellers have received no notice
from any insurance company of any material defects or inadequacies in the
Leased Real Property or any part thereof, which would materially, adversely
affect the insurability of the same or of any termination or threatened
termination of any policy of insurance.
3.7. PERSONAL PROPERTY.
SCHEDULE 2.1(C) contains a complete description of all of
Sellers' machinery, equipment and other tangible personal property that is
located at the Transmitter Sites and is material to the operation of the
Station (other than Excluded Assets) (collectively, the "Material Equipment").
Sellers have good and marketable title to all of the Material Equipment. None
of such Material Equipment is subject to any mortgage, pledge, lien,
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conditional sale agreement, security agreement, encumbrance or other charge,
except for Permitted Encumbrances. The Material Equipment is sufficient for
Buyer to continue the operations of the Station in accordance with applicable
law as conducted by Sellers. Except as otherwise specified in SCHEDULE 2.1(C),
all Material Equipment of Sellers is in good repair and working order, ordinary
wear and tear excepted, and Sellers have maintained all Material Equipment in
compliance with good engineering and customary business practice and all
Material Equipment is otherwise sufficient to permit the Station to operate in
accordance with the FCC Licenses and the rules and regulations of the FCC.
3.8. FCC MATTERS.
3.8(a) One-On-One License holds the FCC Licenses set forth
and described on SCHEDULE 2.1(A). The FCC Licenses constitute all of the
licenses, permits and authorizations from the FCC that are necessary or
required for and/or used in the business and operations of the Station. The FCC
Licenses are valid and in full force and effect through the dates set forth on
SCHEDULE 2.1(A). Except as set forth on SCHEDULE 2.1(A), no application, action
or proceeding is pending for the renewal or modification of any of the FCC
Licenses, and, except for actions or proceedings affecting radio broadcast
stations generally and the proceedings set forth in SCHEDULE 3.8(A) hereto, no
application, complaint, action or proceeding is pending or, to the best of
Sellers' knowledge, threatened that may result in the (i) denial of an
application for renewal, (ii) the revocation, modification, non-renewal or
suspension of any of the FCC Licenses, (iii) the issuance of a cease-and-desist
order, or (iv) the imposition of any administrative or judicial sanction with
respect to the Station.
3.8(b) The Station, its physical facilities, electrical and
mechanical systems and transmitting equipment (i) are being operated in all
respects in compliance with the specifications of the applicable FCC Licenses,
and (ii) are being operated in compliance in all respects with all requirements
of the Communications Act. Sellers have complied with all requirements of the
FCC and the FAA with respect to the construction and/or alteration of Sellers'
antenna structures, and "no hazard" determinations for each antenna structure
have been obtained.
3.8(c) Sellers and the Station are in compliance with the
Communications Act.
3.8(d) Sellers know of no facts, conditions or events
relating to Sellers or the Station that might cause the FCC to have a legally
valid basis to deny the assignment of the FCC Licenses as provided for in this
Agreement or not to renew any of the FCC Licenses in the ordinary course.
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3.9. INTELLECTUAL PROPERTY.
Sellers do not have any knowledge and have not received any
notice to the effect that their use of the Intellectual Property in their
renderings of services relating to the business of the Station infringes on any
Intellectual Property right of another. Sellers have the right pursuant to the
rules and regulations of the FCC to the use of the call letters "WIDB".
3.10. REPORTS AND RECORDS.
All reports, statements and other documents relating to the
Station currently required to be filed by Sellers with the FCC or any other
Governmental Authority in connection with, or as a result of, Sellers'
operation of the Station or ownership of the Assets have been filed and
complied with and were true, correct and complete in all material respects when
filed. All such reports, statements and other documents shall continue to be
filed on a current basis until the Closing Date, and will be true, correct, and
complete in all respects.
3.11. MATERIAL CONTRACTS; SCHEDULED CONTRACTS.
SCHEDULE(D) contains a listing and true copies of all
Material Contracts as of the date hereof. Each Scheduled Contract is in full
force and effect, and constitutes a legal, valid and binding obligation of, and
is legally enforceable against the applicable Seller. Each Seller, where
applicable, and, to the best of such Seller's knowledge, the other parties
thereto, have complied with all of the provisions of such Scheduled Contracts
and are not in default thereunder in any material respect, and there has not
occurred any event which (whether with or without notice or lapse of time)
would constitute such a default. To Sellers' knowledge, there has not been any
threatened cancellation of any Scheduled Contract or any outstanding dispute
thereunder.
3.12. TAXES.
3.12(a) Each Seller has (or, in the case of returns becoming
due after the date hereof and on or before the Closing Date, will have prior to
the Closing Date) duly filed or caused to be filed all Sellers' Tax Returns
required to be filed by such Seller on or before the Closing Date with respect
to all applicable Taxes and have paid all Taxes shown to be due on such
Sellers' Tax Returns.
3.12(b) There is no action, suit, proceeding, audit,
investigation or claim pending or, to Sellers' knowledge, threatened in respect
of any Taxes for which either Seller is liable, nor, to Sellers' knowledge, has
any deficiency or claim for any such Taxes been proposed, asserted or
threatened.
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3.13. FINANCIAL INFORMATION.
Attached hereto as SCHEDULE 3.13 is a listing of the
approximate monthly operating expenses incurred by Sellers in connection with
their ownership and operation of the Station (the "Statement of Expenses"). The
Statement of Expenses presents fairly the estimated monthly expenses of Sellers
and does not materially understate the true costs and expenses of conducting
the business or operations of the Station as currently conducted by Sellers or
otherwise materially inaccurately reflect the operations of the Station.
3.14. LABOR RELATIONS; EMPLOYEE BENEFITS.
Sellers are in compliance in all material respects with all
applicable laws and regulations relating to employment at the Station
including, without limitation, provisions relating to wages, hours, collective
bargaining, safety and health, work authorization, equal employment
opportunity, unemployment compensation, workers' compensation and employee
benefits. There are no collective bargaining agreements, employment agreements
between Sellers and their employees not terminable at will or professional
service contracts not terminable at will relating to the Station or the
business and operations thereof. The consummation of the transactions
contemplated hereby will not cause Buyer to incur or suffer any liability
relating to, or obligation to pay, severance, termination, or other payments to
any person or entity, or any liability under any employee benefit plans of
Sellers, including, without limitation, any liability under the Code or ERISA.
3.15. ENVIRONMENTAL MATTERS.
3.15(a) There are no pending or, to the best of Sellers'
knowledge, threatened actions, suits, claims, legal proceedings or other
proceedings based on, and Sellers have not received any notice of any
complaint, order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental
Authority arising out of or attributable to: (i) the presence at any part of
the Real Property of Hazardous Materials; (ii) the release or threatened
release into the environment from the Real Property (including, without
limitation, into any storm drain, sewer, septic system or publicly owned
treatment works) of any Hazardous Materials; (iii) the off-site disposal of
Hazardous Materials originating on or from the Real Property or the Assets of
Sellers; (iv) any facility operations or procedures of Sellers relating to the
Station or the Assets that do not conform to requirements of the Environmental
Laws; or (v) any violation of Environmental Laws at any part of the Real
Property or otherwise arising from any of Sellers' activities relating to the
Station or the Assets involving Hazardous Materials.
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3.15(b) Each Seller is in compliance, in all material
respects, with all applicable Environmental Laws, including having obtained and
maintained all permits, licenses, certificates, and approvals required under
any Environmental Law. A true and complete list of all such permits, licenses,
certificates and approvals, all of which are valid and in full force and
effect, is set out in SCHEDULE 3.15(B).
3.15(c) To the best of Sellers' knowledge, there have been no
releases of Hazardous Materials on, at, in, under or from the Real Property
that would require investigation and/or remediation under any applicable
Environmental Law.
3.15(d) Other than in compliance with the Communications Act,
the operation of the Station does not cause or result in exposure of workers or
the general public to levels of radio frequency radiation in excess of the
"Radio Frequency Protection Guides" recommended in "American National Standard
Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic
Fields 300 kHz to 100 gHz" (ANSI C95.1-1982), issued by the American National
Standards Institute. Renewal of the FCC Licenses would not constitute a "major
action" within the present meaning of Section 1.1301, ET SEQ., of the FCC's
rules.
3.16. INSURANCE.
SCHEDULE 3.16 contains a list of all policies of title,
property, fire, casualty, liability, life, workmen's compensation, libel and
slander, and other forms of insurance of any kind relating to the Assets (other
than the Excluded Assets) or the business and operations of the Station and
owned or held by Sellers as of the date hereof. All such policies are in full
force and effect.
3.17. DISCLOSURE.
The representations and warranties of Sellers in this
Agreement and the other information furnished by Sellers to Buyer in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in order to make such information not materially misleading. Except for
facts affecting the radio industry generally, there is no fact known to either
Seller which can reasonably be expected to have a Material Adverse Effect.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents and warrants to Sellers as follows:
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4.1. ORGANIZATION AND STANDING.
Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all requisite
power and authority to carry on its business as now being conducted. Buyer has
all requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
4.2. AUTHORIZATION.
The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate proceedings on the part of Buyer
and no other corporate proceedings or actions on the part of Buyer, its board
of directors or its shareholders is necessary therefor. This Agreement
constitutes a valid and binding agreement and obligation of Buyer, enforceable
in accordance with its terms.
4.3. REQUIRED CONSENTS; NO CONFLICTS.
4.3(a) Except in connection with the filings referred to in
SECTIONS 5.1 AND 5.2, the execution, delivery and performance by Buyer of this
Agreement will not require the consent, approval, authorization or permit of,
or filing with, or notification to any person, entity or Governmental
Authority, except which would not materially affect Buyer's ability to
consummate the transactions contemplated by this Agreement.
4.3(b) The execution and delivery of this Agreement, the
fulfillment of and the compliance with the terms and provisions hereof, and the
consummation of the transactions described herein, do not and will not (i)
conflict with or violate any law, regulation, order, award, judgment,
injunction or decree applicable to or affecting Buyer, (ii) conflict with or
result in any breach of or constitute any default (or an event which with
notice or the lapse of time or both would become a default) under any contract
to which Buyer is a party or by which Buyer is bound or to which any of the
Buyer's assets are subject or affected, or result in the acceleration of any
indebtedness of Buyer, or (iii) conflict with or violate any provision of
Buyer's certificate of incorporation or by-laws, except, in each case, as would
not materially affect Buyer's ability to consummate the transactions
contemplated by this Agreement.
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4.4. ABSENCE OF LITIGATION.
There is no action, suit, investigation, claim, arbitration
or litigation pending or, to the best of Buyer's knowledge, threatened against,
affecting or involving the transactions contemplated by this Agreement or that
would affect Buyers' ability to perform its obligations under this Agreement,
at law or in equity, or before or by any court, arbitrator or Governmental
Authority, and the Buyer is not operating under or subject to an order, award,
judgment, writ, decree, determination or injunction of any court, arbitrator or
Governmental Authority that would affect the transactions contemplated by this
Agreement or its ability to perform its obligations under this Agreement.
4.5. QUALIFICATION OF BUYER.
Buyer knows of no facts or circumstances that would cause
Buyer not to meet any qualification to be the assignee of the FCC Licenses or
that Buyer believes will delay a routine grant of the Assignment Applications.
4.6. DISCLOSURE.
The representations and warranties of Buyer in this Agreement
and the other information furnished by Buyer to Sellers in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated in order
to make such information not misleading.
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ARTICLE 5.
PRE-CLOSING FILINGS AND UNDERTAKINGS
5.1. APPLICATIONS FOR FCC CONSENT.
As promptly as practicable and no later than ten (10) days
following the execution of this Agreement, Sellers and Buyer shall jointly file
one or more applications with the FCC requesting its consent to the assignment
of the FCC Licenses for the Station from Sellers to Buyer (the "Assignment
Applications"). Sellers and Buyer shall diligently take, or fully cooperate in
the taking of, all necessary and proper steps, and provide any additional
information reasonably requested, and use their respective reasonable
commercial efforts to resolve and/or overcome objections that may be asserted
by the FCC or any third party, in order to obtain promptly the requested
consent and approval of the Assignment Applications by the FCC. Notwithstanding
anything in this Agreement to the contrary, this SECTION 5.1 shall survive the
Closing until the FCC Consent becomes a Final Order. No assignment of the FCC
Licenses shall occur without the prior written consent of the FCC.
5.2. HART-SCOTT-RODINO.
As promptly as practicable and no later than ten (10) days
following the execution of this Agreement, Sellers and Buyer shall complete any
filing (each a "HSR Filing") that may be required pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and all laws
promulgated thereto or in connection therewith ("HSR"), or shall mutually agree
that no such filing is required. Sellers and Buyer shall diligently take, or
fully cooperate in the taking of, all necessary and proper steps, and provide
any additional information reasonably requested in order to comply with the
requirements of HSR. Sellers and Buyer shall use their respective reasonable
commercial efforts to resolve and/or overcome objections that may be asserted
under HSR or any other antitrust law in connection with the transactions
contemplated by this Agreement.
5.3. SHARING INFORMATION.
Each party hereto shall as promptly as possible, and in any
event within two (2) business days, inform the other of any material
communications between such party and the FCC or any other Governmental
Authority regarding this Agreement or the transactions contemplated hereby. If
any party receives a request for additional information or documentary material
from any such Governmental Authority, then such party shall endeavor in good
faith to make, or cause to be made, as promptly as practicable and after
consultation with the other party, an appropriate response to such request.
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ARTICLE 6.
COVENANTS AND AGREEMENTS OF SELLERS
Subject to SECTION 8.1 below, Sellers covenant and agree with
Buyer as follows:
6.1. NEGATIVE COVENANTS.
Pending and prior to the Closing, Sellers will not, without
the prior written consent or approval of Buyer, which shall not be unreasonably
withheld, do or agree to do any of the following, as such actions relate to the
Station or the Assets:
6.1(a) DISPOSITIONS; MERGERS. Sell, assign, lease or
otherwise transfer or dispose of any of the Assets; or merge or consolidate
with or into any other entity or enter into any Contracts relating thereto;
PROVIDED, HOWEVER, that Sellers may sell, assign, lease or otherwise transfer
or dispose of any Asset in the Ordinary Course of Business provided that either
(i) it is replaced or (ii) the sale proceeds in respect of such Asset are held
for the benefit of the Buyer.
6.1(b) ADDITIONAL AGREEMENTS. Acquire or enter into any
Additional Agreements except in the Ordinary Course of Business, or renew,
extend, amend, alter, modify, replace or otherwise change any Scheduled
Contract, except in the Ordinary Course of Business or as set forth on SCHEDULE
6.1(B).
6.1(c) CONTRACT BREACHES. Do or omit to do any act (or
permit such action or omission) which will cause a material breach of any
Contract to which either Seller is a party or by which either Seller is bound.
6.1(d) ACTIONS AFFECTING FCC LICENSES OR CONTRACTS. Take any
action that jeopardizes the validity or enforceability of or rights under the
FCC Licenses, or take any action under any Scheduled Contract that would have a
Material Adverse Effect.
6.2. AFFIRMATIVE COVENANTS.
Pending and prior to the Closing Date, Sellers will, as such
actions relate to the Station or the Assets:
6.2(a) NORMAL OPERATIONS. Subject to the terms and
conditions of this Agreement (including, without limitation, SECTION 6.1) (i)
carry on the business and activities of the Station in the Ordinary Course of
Business; (ii) pay or otherwise satisfy all obligations (cash and barter) of
the Station in the Ordinary Course of Business; (iii) maintain all Assets in
customary repair, order and condition; and (iv) maintain their books of
account, records, and files in substantially the same manner as heretofore
maintained.
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6.2(b) FCC MATTERS. (i) Maintain the validity of the FCC
Licenses, and comply in all material respects with all requirements of the FCC
Licenses and the rules and regulations of the FCC; and (ii) deliver to Buyer,
within ten (10) business days after filing, copies of any reports, applications
or responses to the FCC related to the Station that are filed between the date
of this Agreement and the Closing Date.
6.2(c) ACTIONS. Take all actions under the applicable laws
and regulations of any state having jurisdiction over Sellers necessary to
effectuate the transactions contemplated by this Agreement and by the other
Transaction Documents.
6.2(d) TRANSFER TAX; BULK SALES. If any laws pertaining to
bulk sales apply to the transactions contemplated hereby, Sellers will
indemnify the Buyer against any and all debts, claims, unpaid bills,
attachments, injunctions or other writs and against any and all loss on account
of charges, assessments, damages or expenses incurred by the Buyer, except to
the extent assumed by the Buyer hereunder, on account of failure to comply with
such laws pertaining to bulk sales. Payment of any claims under the immediately
preceding sentence shall be made promptly in cash upon demand.
6.2(e) ACCESS. Sellers shall (i) give to Buyer and Buyer's
authorized representatives access during normal business hours to Sellers'
properties, books, records, Contracts, commitments, Transmitter Sites
facilities, premises, and equipment and to Sellers' officers and employees,
agents and representatives (including, without limitation, the independent
accountants of Sellers) relating to the Assets and (ii) permit Buyer and
Buyer's consulting engineers and independent contractors, at Buyer's expense,
to conduct engineering and other inspections of the Station and the Assets,
PROVIDED that all access under subparagraphs (i) and (ii) shall be upon
reasonable prior notice and in a manner that will not interfere with the
Station's operations.
6.2(f) ENCUMBRANCES. Pay in full all liabilities associated
with and use its reasonable commercial efforts to obtain discharges of all
mortgages, security interests, liens and similar claims by third parties
encumbering the Assets (other than Permitted Encumbrances) at or prior to the
Closing Date.
6.2(g) INSURANCE. Maintain in full force and effect all of
their existing casualty, liability, and other insurance through the day
following the Closing Date in amounts not less than those in effect on the date
hereof.
6.2(h) VIOLATIONS. Upon receiving notice or otherwise
becoming aware of any violation relating to the FCC Licenses, any violation by
the Station of any rules and regulations of the FCC, or any material violations
under any other applicable laws and regulations, promptly notify Buyer and, at
Sellers' expense, use reasonable commercial efforts to cure all such violations
prior to the Closing Date.
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6.2(i) INTERRUPTION IN BROADCAST OPERATIONS. Promptly notify
Buyer in writing if the Station ceases to broadcast at its authorized power for
more than 48 consecutive hours. Such notice shall specify the reason or reasons
for such cessation and the corrective measures taken or to be taken by Sellers.
6.2(j) ENVIRONMENTAL MATTERS. (i) Promptly furnish to Buyer
written notice of any material discharge of any Hazardous Materials or of any
actions or notices described in SECTION 3.15; and (ii) any material change in
the information set forth in SECTION 3.15 or SCHEDULE 3.15(B).
6.2(k) CONSENTS. Use commercially reasonable best efforts to
obtain any third party consents required to assign to Buyer the Assets,
including but not limited to the Material Contracts.
6.2(l) UPDATING. Prior to the Closing Date, provide Buyer
with documentation regarding any material changes to the Schedules hereto
including, without limitation, copies of Additional Agreements.
6.3. CONFIDENTIALITY.
Sellers shall maintain strict confidentiality with respect to
(i) all documents and information furnished to Sellers by or on behalf of Buyer
or retained by Sellers pursuant to SECTION 2.2(D) and (ii) the terms of the
transactions contemplated hereby. Nothing shall be deemed to be confidential
information that: (a) is known to Sellers at the time of its disclosure to
Sellers; (b) becomes publicly known or available other than through disclosure
by Sellers; (c) is received by Sellers from a third party not actually known by
Sellers to be bound by a confidentiality agreement with or obligation to Buyer;
or (d) is independently developed by Sellers as clearly evidenced by its
records. Notwithstanding the foregoing provisions of this SECTION 6.3, Sellers
may disclose such confidential information (x) to the extent required or deemed
advisable to comply with applicable laws and regulations, (y) to its officers,
managers, members, employees, representatives, financial advisors, attorneys,
accountants, lenders and agents and to its members' officers and directors with
respect to the transactions contemplated hereby (so long as such parties are
informed of the confidentiality of such information), and (z) to any
Governmental Authority in connection with the transactions contemplated hereby.
In the event this Agreement is terminated, Sellers will return to Buyer all
confidential information prepared or furnished by Buyer relating to the
transactions contemplated hereunder, whether obtained before or after the
execution of this Agreement.
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ARTICLE 7.
COVENANTS AND AGREEMENTS OF BUYER
Buyer covenants and agrees with Sellers as follows:
7.1. CONFIDENTIALITY.
Buyer shall maintain strict confidentiality with respect to
(i) all documents and information furnished to Buyer by or on behalf of Sellers
and (ii) the terms of the transactions contemplated hereby. Nothing shall be
deemed to be confidential information that: (a) is known to Buyer at the time
of its disclosure to Buyer; (b) becomes publicly known or available other than
through disclosure by Buyer; (c) is received by Buyer from a third party not
actually known by Buyer to be bound by a confidentiality agreement with or
obligation to Sellers; or (d) is independently developed by Buyer as clearly
evidenced by its records. Notwithstanding the foregoing provisions of this
SECTION 7.1, Buyer may disclose such confidential information (x) to the extent
required or deemed advisable to comply with applicable laws and regulations,
(y) to its officers, directors, employees, representatives, financial advisors,
attorneys, accountants, and agents with respect to the transactions
contemplated hereby (so long as such parties are informed of the
confidentiality of such information), and (z) to any Governmental Authority in
connection with the transactions contemplated hereby. In the event this
Agreement is terminated, Buyer will return to Sellers all confidential
information prepared or furnished by Sellers relating to the transactions
contemplated hereunder, whether obtained before or after the execution of this
Agreement.
7.2. ACTIONS.
Prior to the Closing, Buyer shall take all action under the
applicable laws and regulations of any state having jurisdiction over Buyer
necessary to effectuate the transactions contemplated by this Agreement.
7.3. ACCESS.
Buyer agrees to (i) maintain all of the books and records of
the Station existing on the Closing Date for a period of ten (10) years from
the Closing Date, unless earlier released by Sellers and (ii) give Sellers and
Sellers' authorized representatives full and complete access upon reasonable
notice during normal business hours to such books and records of the Station
existing on the Closing Date.
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7.4. NOTICE OF CERTAIN EVENTS.
Buyer agrees to promptly notify Sellers of any fact or
circumstance of which Buyer becomes aware after the date of this Agreement that
would reasonably be expected to cause it not to meet any qualification to be
the assignee of the FCC Licenses or that it believes may delay a routine grant
of the Assignment Applications. Buyer will use its reasonable commercial
efforts to remedy such fact or circumstance. Buyer will not take any action
that Buyer knows, or has reason to believe, would result in the occurrence of
any such fact or circumstance.
ARTICLE 8.
MUTUAL COVENANTS AND UNDERSTANDINGSOF SELLERS AND BUYER
8.1. POSSESSION AND CONTROL.
Notwithstanding any other provision of this Agreement or any
Transaction Document, between the date hereof and the Closing Date, Buyer shall
not directly or indirectly control, supervise or direct, or attempt to control,
supervise or direct, the business and operations of the Station, and such
operation, including complete control and supervision of all programming,
finances and employment shall be the sole responsibility of Sellers; provided,
however, that Buyer shall be entitled to inspect the Assets as provided in
SECTION 6.2(E). On and after the Closing Date, Sellers shall have no control
over, or right to intervene, supervise, direct or participate in, the business
and operations of the Station.
8.2. RISK OF LOSS.
8.2(a) The risk of loss or damage by fire or other casualty
or cause to the Assets until the Closing Date shall be upon Sellers. In the
event of such loss or damage prior to the Closing Date, Sellers shall use
reasonable commercial efforts to restore, replace or repair the damaged Assets
in accordance with Sellers' past practices at Sellers' sole cost and expense.
In the event such loss or damage shall not be restored, replaced, or repaired
as of the Closing Date, Buyer shall proceed with the Closing and receive at
Closing a reduction of the Purchase Price in an amount which, net of any
insurance proceeds paid by Sellers to Buyer, or the value of any rights to
receive insurance proceeds which are assigned by Sellers to Buyer, is
sufficient to pay for such restoration, replacement or repair.
8.2(b) In the event that any loss or damage described in
SECTION 8.2(A) shall not be restored, replaced or repaired as of the Closing
Date, Sellers may defer the Closing Date until such restorations, replacements
or repairs are made, so long as such restorations, replacements or repairs are
made within sixty (60) days after the date the Closing would have occurred in
the absence of such loss or damage.
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8.3. ALLOCATION OF PURCHASE PRICE.
Buyer and Sellers will allocate the Purchase Price payable by
Buyer hereunder in accordance with the requirements of Section 1060 of the
Code. A preliminary allocation shall be prepared by Buyer and the final
allocation shall be determined by mutual agreement of the parties prior to the
Closing. Buyer and Sellers further agree to file their respective federal
income tax returns and other tax returns in a manner consistent with such final
allocation.
8.4. PUBLIC ANNOUNCEMENTS.
Sellers and Buyer shall consult with each other before making
any public statements with respect to this Agreement or the transactions
contemplated herein.
8.5. EMPLOYEE MATTERS.
All employees of the Station shall be and remain Sellers'
employees, with Sellers having full authority and control over their actions,
and Buyer shall not assume the status of an employer or a joint employer of, or
incur or be subject to any liability or obligations of an employer with respect
to, any such employees unless and until actually hired by Buyer. Sellers shall
be solely responsible for any and all liabilities and obligations Sellers may
have to the employees of the Station, including, without limitation,
compensation, severance pay, incentive bonuses, health expenses, and accrued
vacation time, sick leave and obligations under any of Sellers' employee
benefit plans. Sellers shall comply with the provisions of the Worker
Adjustment and Retraining and Notification Act (the "WARN Act") and similar
laws and regulations, if applicable, and shall be solely responsible for any
and all liabilities, penalties, fines, or other sanctions that may be assessed
or otherwise due under such applicable laws and regulations on account of the
dismissal or termination of the employees of the Station by Sellers.
8.6. UNWIND AGREEMENT.
Pursuant to Sections 9.4 and 10.3 of this Agreement, the
parties agree to close the transactions contemplated by this Agreement prior to
the FCC Consent becoming a Final Order and to enter into an unwind agreement,
at Closing, in substantially the form attached as EXHIBIT B hereto (the "Unwind
Agreement").
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8.7 TIME BROKERAGE AGREEMENT.
Upon execution of this Agreement, One-On-One Radio and Buyer
shall enter into the TBA.
8.8 DIPLEXING.
From and after the Closing Date, Buyer shall, upon the
written request of One-On-One Sports, Inc., permit either Seller or any other
subsidiary of One-On-One Sports, Inc. (the "Diplexing Party") to have access to
the Transmitter Site located in Burnham, Illinois (the "Night Site") for the
purpose of diplexing the transmission of a radio signal from such site. The
Diplexing Party shall have the right to install equipment on the Night Site,
affix equipment to the towers on such site, build and utilize one or more
towers on such site, and take such other actions as may be necessary to
effectively diplex such transmission; PROVIDED, HOWEVER, that such rights of
the Diplexing Party shall be subject to the following conditions: (i) no
diminution of Buyer's signal or adverse effect on the signal pattern of the
Station; (ii) receipt of requisite governmental approvals and other required
consents, if any; (iii) Buyer's reasonable satisfaction with all related safety
and engineering considerations; (iv) payment by the Diplexing Party of all
costs associated with constructing or upgrading the Night Site to accommodate
such diplexing; (v) payment by each of Buyer and the Diplexing Party of its own
electricity charges; and (vi) the mutually satisfactory agreement of Buyer and
Diplexing Party upon and the payment by Diplexing Party to Buyer, on a monthly
basis, of fair and commercially reasonable (relative to the market value for
antenna site leases for comparable transmitter sites) compensation for such
access and rights.
8.9 HOCKEY BROADCASTS.
Buyer and Sellers each acknowledge that Buyer has not assumed
the obligations of One-On-One as set forth in that certain Radio Broadcast
Agreement, dated September 3, 1998 (the "Hockey Contract"), entered into
between Rosemont Hockey Partners, L.P. and One-On-One Sports. Notwithstanding
the previous sentence hereof, from and after the Closing Date, Buyer shall use
commercially reasonable best efforts, consistent with the limited operating
hours of radio station WYPA(AM), Chicago, Illinois ("WYPA"), to broadcast on
WYPA the hockey games set forth in the Hockey Contract until such time as that
certain Time Brokerage Agreement, dated as of June 9, 1998, entered into by and
between Achievement Radio Holdings, Inc. and Buyer has terminated and shall
likewise use commercially reasonable best efforts, consistent with the
availability of air time on the Station, to broadcast such games on the Station
after 9 p.m.
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ARTICLE 9.
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer to purchase the Assets and to
proceed with the Closing are subject to the satisfaction (or waiver in writing
by Buyer) at or prior to the Closing of each of the following conditions:
9.1. REPRESENTATIONS AND COVENANTS.
Each of the representations and warranties (other than those
representations and warranties which by their terms are as of a specific date)
of Sellers made in this Agreement or in any other Transaction Document shall be
true and correct, as though made on or as of the Closing Date, and Sellers
shall have performed and complied with all covenants and agreements required by
this Agreement or any other Transaction Document to be performed or complied
with by Sellers prior to the Closing.
9.2. CONSENTS.
Except as set forth on SCHEDULE 9.2, Sellers shall have
obtained prior to the Closing Date all consents, authorizations or approvals
necessary to effect valid assignments to Buyer of the Assets, including but not
limited to the Scheduled Contracts, except for the FCC Consent, which shall be
governed by SECTION 9.4 and except for any HSR Filing, which shall be governed
by SECTION 9.5.
9.3. DELIVERY OF DOCUMENTS.
Sellers shall have delivered to Buyer the Transaction
Documents required to be delivered by Sellers to Buyer pursuant to SECTION
11.2.
9.4. FCC CONSENT.
The FCC Consent shall have been granted and shall be in full
force and effect (but without having waited for the FCC Consent to become a
Final Order).
9.5 HSR.
All applicable waiting periods under HSR shall be expired or
terminated.
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9.6. LEGAL PROCEEDINGS.
No Governmental Authority shall have enacted, enforced,
issued or entered any law, rule, regulation or order, including in connection
with any action or proceeding brought by a third party (not subsequently
dismissed, settled or otherwise terminated), which prohibits or invalidates the
transactions contemplated by this Agreement or any other Transaction Document
or prevents, limits, restricts or impairs the ownership, use or operation of
the Assets or the Station by Buyer, other than an action or proceeding
instituted by Buyer.
9.7. TITLE INSURANCE, SURVEY AND ESTOPPEL CERTIFICATES.
9.7(a) Sellers shall have delivered to Buyer, at Sellers'
sole expense, good and valid title insurance policies (the "Title Policies")
dated as of the close of business on the date of the Closing, insuring Buyer's
title as fee or leasehold owner, as applicable, in each parcel of real or
leased property to be conveyed to Buyer pursuant hereto. In each instance the
title shall be insured by means of a current ALTA policy dated, or updated, to
the Closing Date, insuring, among other things, access rights to such property
and specific survey facts, if any. Each such policy, as to the insurer, the
insured, the dollar limit and amount of coverage and the exceptions and
conditions thereof shall be, in all respects, satisfactory to the Buyer, both
as to form and substance. In no event shall any such policy contain any
exception from the policy coverage, printed or otherwise, not specifically
permitted by the Permitted Encumbrances.
9.7(b) Sellers shall have delivered to Buyer estoppel
certificates (the "Estoppel Certificates"), dated within ten (10) days prior to
the Closing, from each of the landlords or lessors of the Leases set forth in
SCHEDULE 2.1(B), in form and substance satisfactory to Buyer;
9.7(c) Seller shall have delivered to Buyer, at Buyer's sole
cost and expense, an ALTA and American Congress on Surveying and Mapping (ACSM)
survey ("Survey") acceptable to Buyer. Such Survey shall (i) be prepared and
certified by a Registered Public Surveyor or Registered Professional Engineer,
(ii) comply with 1997 ALTA/ACSM minimum detail requirements for Urban Land
Title Surveys including Table A, items 1-4, 6-11 and 13, (iii) locate all
improvements, building lines, rights-of-way and easements (identified by
appropriate recording reference) and other matters of record, evidenced by
on-site observation or as determined by the surveyor's examination of Sellers'
records affecting the Real Property, (iv) contain a legal description of the
Real Property, (v) include a surveyor's certification in form and substance
acceptable to Buyer and (vi) be dated as of the Closing Date.
9.8 TIME BROKERAGE AGREEMENT.
The TBA and all agreements contemplated therein shall have
become effective in accordance with the terms and conditions thereof and, from
and after the date the TBA and such agreements are to first become effective
through and including the Closing Date, the TBA and such agreements shall have
not been terminated due to One-On-One Radio's breach thereof. The Refund (as
defined in the TBA) shall have been paid to Buyer.
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ARTICLE 10.
CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
The obligations of Sellers to sell, transfer, convey and
deliver the Assets (other than the Excluded Assets) and to proceed with the
Closing are subject to the satisfaction (or waiver in writing by Sellers) at or
prior to the Closing of each of the following conditions:
10.1. REPRESENTATIONS AND COVENANTS.
Each of the representations and warranties of Buyer made in
this Agreement shall be true and correct, as though made on or as of the
Closing Date, and Buyer shall have performed and complied with all covenants
and agreements required by this Agreement or any other Transaction Document to
be performed or complied with by Buyer prior to the Closing.
10.2. DELIVERY BY BUYER.
Buyer shall have delivered to Sellers (i) the Purchase
Price and (ii) any other document required to be delivered by Buyer to Sellers
pursuant to SECTION 11.3.
10.3. FCC CONSENT.
The FCC Consent shall have been granted and shall be in
full force and effect (but without having waited for the FCC Consent to become
a Final Order).
10.4 HSR.
All applicable waiting periods under HSR shall have expired
or terminated.
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10.5. LEGAL PROCEEDINGS.
No Governmental Authority shall have enacted, enforced,
issued or entered any law, rule, regulation or order, including in connection
with any action or proceeding brought by a third party, (not subsequently
dismissed, settled, or otherwise terminated) which prohibits or invalidates the
transactions contemplated by this Agreement, any other Buyer Document or any
Transaction Document, other than an action or proceeding instituted by Sellers.
10.6 TIME BROKERAGE AGREEMENT.
The TBA and all agreements contemplated therein shall have
become effective in accordance with the terms and conditions thereof and, from
and after the date the TBA and such agreements are to first become effective
through and including the Closing Date, the TBA and such agreements shall have
not been terminated due to Buyer's breach thereof.
10.7 CALL LETTERS.
Buyer shall have applied for and received a grant from the
FCC authorizing it to use new call letters for the Station other than the call
letters "WIDB", which pursuant to SECTION 2.2(H) herein shall remain an
Excluded Asset together with all rights therein.
ARTICLE 11.
THE CLOSING
11.1. CLOSING.
11.1(a) Unless otherwise agreed upon in writing by Buyer
and Sellers, the Closing Date shall be on the tenth (10th) day following the
grant of the FCC Consent; PROVIDED, HOWEVER, that the Closing shall not occur
prior to May 1, 1999 (except that Buyer may, at its sole option, designate an
earlier Closing Date upon ten (10) days prior written notice to Seller).
11.1(b) The Closing shall be held at such time of day and
place or places as the parties may agree.
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11.2. DELIVERY BY SELLERS.
At or before the Closing, Sellers shall deliver to Buyer
the following:
11.2(a) CONTRACTS, AGREEMENTS AND INSTRUMENTS. The
following Transaction Documents dated as of the Closing Date and duly executed
by Sellers, in form and substance reasonably satisfactory to counsel to Buyer
and sufficient to transfer and convey to Buyer all of Sellers' right, title and
interest (of the quality required in this Agreement) in and to the Assets other
than the Excluded Assets:
(i) the Assignment of Leases;
(ii) the Bill of Sale;
(iii) the Assignment of FCC Licenses;
(iv) the Assignment of Contracts;
(v) the Deeds;
(vi) the Title Policies;
(vii) the Estoppel Certificates;
(viii) the Survey; and
(ix) all such other general instruments of
transfer, assignment and conveyance, grant deeds, certificates of title,
assignments, estoppel certificates for Leased Real Property, evidences of
consent or waiver, and other instruments or documents in form and substance
satisfactory to Buyer, as shall be necessary to evidence the sale, assignment,
transfer and conveyance of the Assets other than the Excluded Assets to Buyer
in accordance with this Agreement.
11.2(b) CONSENTS. Originals of all consents obtained
pursuant to Section 6.2(k).
11.2(c) UCC REPORT. A report dated not more than ten (10)
days prior to the Closing Date of the appropriate filing officers in the
jurisdictions specified in SCHEDULE 3.1 evidencing no judgments, financing
statements, tax liens, mechanics', materialmen's or other statutory liens on
file with respect to the Assets, and, if such report evidences that judgments,
financing statements, tax liens, mechanics', materialmen's or other statutory
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liens are on file with respect to any of the Assets, a termination statement or
other appropriate document signed by the secured party or lienholder evidencing
the release or termination of such financing statement or such lien or a
pay-off letter from such secured party or lienholder indicating that such party
or lienholder will provide such release or termination statement upon receipt
of payment from the proceeds of the sale contemplated herein.
11.2(d) CERTIFIED CONSENTS. A copy of (i) a written
consent signed by each Sellers' members and certified as being correct and
complete and then in full force and effect, authorizing the execution, delivery
and performance of the Transaction Documents, and the consummation of the
transactions contemplated thereby, and (ii) a copy of the certificate of
formation and the limited liability company agreement of each Seller, certified
by the members of each Seller as being true, correct and complete as of the
Closing Date.
11.2(e) MEMBERS' CERTIFICATES.
(i) Certificates from each Seller signed on
behalf of such Seller by each of their members certifying that all conditions
set forth in Section 9.1 (giving effect to any updated Schedules pursuant to
SECTION 6.2(L)) have been satisfied; and
(ii) Certificates signed by the members of
each Seller as to the authorization of the officers of such members executing
any Transaction Document on behalf of such Seller.
11.2(f) EXPENSE PAYMENT. A check or checks, or other
evidence of payment acceptable to Buyer, with respect to the expenses payable
by Sellers, if any, as described in SECTION 15.4.
11.2(g) OPINIONS OF COUNSEL. The opinions of Winston &
Strawn and Fletcher, Heald & Hildreth, P.L.C., counsel to Sellers, in form and
substance reasonably satisfactory to Buyer.
11.2(h) UNWIND AGREEMENT. The Unwind Agreement (unless at
the time of the Closing the FCC Consent shall have become a Final Order).
11.2(i) OTHER DOCUMENTS. Such other documents to be
delivered by Sellers hereunder as are reasonably necessary for Buyer to
effectuate and document the transactions contemplated hereby.
11.3. DELIVERY BY BUYER.
At or before the Closing, Buyer shall deliver to Sellers
the following:
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11.3(a) PURCHASE PRICE PAYMENT. The Purchase Price.
11.3(b) BUYER DOCUMENTS. Such certificates, instruments or
documents as Sellers may reasonably request in order to effect and document the
transactions contemplated hereby.
11.3(c) CERTIFIED RESOLUTIONS AND CORPORATE DOCUMENTS. A
copy of (i) the resolutions of the board of directors of Buyer, certified as
being correct and complete and then in full force and effect, authorizing the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and (ii) a copy of the certificate of
incorporation and by-laws of Buyer, certified by the corporate secretary of
Buyer as being true, correct and complete as of the Closing Date.
11.3(d) OFFICERS' CERTIFICATE.
(i) A certificate of Buyer signed by its
president and corporate secretary certifying that all conditions set forth in
SECTION 10.1 have been satisfied; and
(ii) a certificate signed by the corporate
secretary of Buyer as to the incumbency of the officer of Buyer executing this
Agreement on behalf of the Buyer.
11.3(e) EXPENSE PAYMENT. A check or checks, or other
evidence of payment acceptable to Sellers, with respect to the expenses payable
by Buyer, if any, as described in SECTION 15.4.
11.3(f) OPINION OF COUNSEL. The opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel to Buyer, in form and substance reasonably
satisfactory to Sellers.
11.3(g) UNWIND AGREEMENT. The Unwind Agreement (unless at
the time of the Closing the FCC Consent shall have become a Final Order).
11.3(h) GRANT OF CALL LETTERS. Evidence reasonably
satisfactory to Sellers of the FCC's grant to Buyer of new call letters for the
Station.
11.3(i) OTHER DOCUMENTS. Such other documents to be
delivered by Buyer hereunder as are reasonably necessary for Sellers to
effectuate the transactions contemplated herein.
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ARTICLE 12.
SURVIVAL; INDEMNIFICATION
12.1. SURVIVAL OF REPRESENTATIONS.
Except as otherwise set forth herein, all representations
and warranties, covenants and agreements of Sellers and Buyer contained in or
made pursuant to this Agreement or in any certificate furnished pursuant hereto
shall survive the Closing Date and shall remain in full force and effect for a
period of twelve (12) months after the Closing Date, except that the
representations and warranties of Sellers contained in SECTION 3.15 shall
survive the Closing Date and shall remain in full force and effect for a period
of eighteen (18) months after the Closing Date. All such representations and
warranties, covenants, and agreements shall also survive and be unaffected by
(and shall not be deemed waived by) any investigation, audit, appraisal, or
inspection at any time made by or on behalf of any party hereto.
Notwithstanding anything herein to the contrary, any representation, warranty,
covenant or agreement which is the subject of a claim which is asserted in
writing prior to the expiration of the applicable period set forth above shall
survive with respect to such claim or dispute until the final resolution
thereof.
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12.2. INDEMNIFICATION BY SELLERS.
Subject to the conditions and provisions of SECTION 12.4,
Sellers agree to indemnify, defend and hold harmless Buyer and Buyer's
respective directors, officers, managers and employees ("Buyer Indemnified
Parties") from and against and in respect of any and all Losses, asserted
against, resulting to, imposed upon or incurred by the Buyer Indemnified
Parties, directly or indirectly, by reason of or resulting from (a) any
liability or obligation of or claim against Buyer Indemnified Parties (whether
absolute, accrued, contingent or otherwise and whether a contractual or any
other type of liability or obligation or claim) not expressly assumed by Buyer
pursuant to SECTION 2.6, arising out of, relating to or resulting from the
businesses of Sellers, or relating to or resulting from the Assets or the
business and operations of the Station during the period prior to the Closing
Date; (b) any misrepresentation or breach of the warranties of Sellers
contained in or made pursuant to any Transaction Document; (c) any
noncompliance by Sellers with any covenants, agreements or undertakings of
Sellers contained in or made pursuant to any Transaction Document including
without limitation any failure to comply with applicable Bulk Sales laws; (d)
any employment related practices, policies, Contracts, decisions, actions or
omissions by Sellers with respect to any of Sellers' employees or former
employees or otherwise with respect to any employee benefit plan or arrangement
sponsored or maintained by Sellers or any Affiliate of Sellers or; (e) any
breach by Sellers of any Scheduled Contract; (f) any pre-closing breach by
Sellers of either (x) any Contract assumed by Buyer pursuant to SECTION 2.6(B)
(III) or (y) any Additional Agreement that constitutes an Assumed Liability.
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12.3. INDEMNIFICATION BY BUYER.
Subject to the conditions and provisions of SECTION 12.4,
Buyer hereby agrees to indemnify, defend and hold harmless Sellers, their
members, One-On-One Sports, Inc. and their respective directors, officers and
employees ("Sellers Indemnified Parties") from, against and with respect to any
and all Losses, asserted against, resulting to, imposed upon or incurred by
Sellers Indemnified Parties, directly or in indirectly, by reason of or
resulting from (a) any liability or obligation of or claims against Sellers
Indemnified Parties (whether absolute, accrued, contingent or otherwise and
whether contractual, Tax or any other type of liability or obligation or claim)
expressly assumed by Buyer pursuant to SECTION 2.6; (b) any misrepresentation
or breach of the warranties of Buyer contained in or made pursuant to any Buyer
Document; (c) any noncompliance by Buyer with any covenants, agreements or
undertakings of Buyer contained in or made pursuant to any Buyer Document; (d)
any liability or obligation of or claims against Sellers Indemnified Parties
(whether absolute, accrued, contingent or otherwise and whether a contractual,
Tax or any other type of liability or obligation or claim) arising out of,
relating to or resulting from the business of Buyer, or relating to or
resulting from the Assets (other than the Excluded Assets) or the Assumed
Liabilities, or the business and operations of the Station during the period
from and after the Closing Date; (e) any failure by Buyer to obtain and hold
any permit, license or approval from any Governmental Authority necessary in
order to conduct the operations of the Station in accordance with applicable
law and to own, use and maintain the Assets; and (f) any decision by Buyer to
close the transactions contemplated by this Agreement notwithstanding a failure
by Sellers to obtain any consent, authorization or approval, including
Governmental Approvals relating to the assignment of governmental permits,
orders or authorizations, and consents, authorizations and approvals of
non-governmental third parties necessary to effect valid assignments or
transfers to Buyer of any Asset, including any Material Contract set forth on
SCHEDULE 2.1(D), or any Additional Agreement.
12.4. CONDITIONS OF INDEMNIFICATION.
The obligations and liabilities of Sellers and of Buyer
hereunder with respect to their respective indemnities pursuant to this ARTICLE
12, shall be subject to the following terms and conditions:
12.4(a) The party seeking indemnification (the "Indemnified
Party") must give the other party or parties, as the case may be (the
"Indemnifying Party"), notice specifying in reasonable detail the nature of any
such Losses promptly after the Indemnified Party receives notice thereof;
provided that the failure to give such notice shall not affect the rights of
the Indemnified Party hereunder except to the extent that the Indemnifying
Party's defense shall have been materially impaired.
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12.4(b) The Indemnifying Party shall have the right, absent
a conflict of interest, to undertake, by counsel or other representatives of
its own choosing, the defense of such Losses at the Indemnifying Party's risk
and expense.
12.4(c) In the event that the Indemnifying Party shall
elect not to undertake such defense, or, within a reasonable time after notice
from the Indemnified Party of any such Losses, shall fail to defend, the
Indemnified Party (upon further written notice to the Indemnifying Party) shall
have the right to undertake the defense, compromise or settlement of such
Losses, by counsel or other representatives of its own choosing, on behalf of
and for the account and risk of the Indemnifying Party (subject to the right of
the Indemnifying Party to assume defense under SECTION 12.4(B) hereof at any
time prior to settlement, compromise or final determination thereof). In such
event, the Indemnifying Party shall pay to the Indemnified Party, in addition
to the other sums required to be paid hereunder, the costs and expenses
incurred by the Indemnified Party in connection with such defense, compromise
or settlement as and when such costs and expenses are so incurred.
12.4(d) Anything in this SECTION 12.4 to the contrary
notwithstanding, (i) if there is a reasonable probability that Losses may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise
or settlement of the Losses, (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, which shall not be unreasonably withheld,
settle or compromise any Losses or consent to entry of any judgment which does
not include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect
of such Losses in form and substance satisfactory to the Indemnified Party, and
(iii) in the event that the Indemnifying Party undertakes defense of any
Losses, the Indemnified Party, by counsel or other representative of its own
choosing and at its sole cost and expense, shall have the right to consult with
the Indemnifying Party and its counsel or other representatives concerning such
Losses and the Indemnifying Party and the Indemnified Party and their
respective counsel or other representatives shall cooperate with respect to
such Losses and (iv) in the event that the Indemnifying Party undertakes
defense of any Losses, the Indemnifying Party shall have an obligation to keep
the Indemnified Party informed of the status of the defense of such Losses and
furnish the Indemnified Party with all documents, instruments and information
that the Indemnified party shall reasonably request in connection therewith.
12.4(e) No claim for indemnification shall be made by
either Indemnified Party unless the aggregate losses of such Indemnified Party
exceed Twenty-Five Thousand Dollars ($25,000) (the "Threshold Amount"),
whereupon, the Indemnified Party shall be entitled to indemnification hereunder
by the Indemnifying Party for any such aggregate losses in excess of the
Threshold Amount. Notwithstanding any other provision of this Agreement, the
maximum liability that any Indemnifying Party shall have for indemnification
claims hereunder shall not exceed Sixteen Million Seven Hundred Fifty Thousand
Dollars ($16,750,000) in the aggregate.
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12.4(f) The indemnification obligations under this ARTICLE
12 with respect to SECTIONS 12.2(B) AND 12.3(B) shall expire twelve (12) months
following the Closing Date; PROVIDED, that, if any such indemnification claim
under such Sections has been asserted in writing prior to the stated expiration
of the applicable period set forth above, then any indemnification obligation
with respect thereto shall survive until final resolution thereof.
12.4(g) If any indemnity claim relates to the cleanup of
Hazardous Materials, such cleanup shall be required only to the extent that it
is required by a Governmental Authority pursuant to an Environmental Law.
ARTICLE 13.
TERMINATION
13.1. TERMINATION.
This Agreement may be terminated at any time prior to the
Closing by:
13.1(a) the mutual consent, in writing, of Sellers and
Buyer;
13.1(b) Buyer, by written notice of termination delivered
to Sellers, if Sellers are in material default of their obligations hereunder
and have failed to cure such default to Buyer's reasonable satisfaction within
thirty (30) days following written notice of such default sent by Buyer to
Sellers;
13.1(c) Sellers, by written notice of termination delivered
to Buyer, if Buyer is in material default of its obligations hereunder and has
failed to cure such default to Sellers' reasonable satisfaction within thirty
(30) days following written notice of such default sent by Sellers to Buyer;
13.1(d) automatically, without the need for further action
on the part of any party hereto, upon the first date on which the denial of the
FCC Consent becomes a Final Order; or
13.1(e) by any party not then in default hereunder if for
any reason the Closing has not occurred within one year following the date of
this Agreement (as such date may be extended by mutual agreement of the
parties).
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13.2. EFFECT OF TERMINATION.
In the event this Agreement is terminated as provided in
SECTION 13.1(A), (D) OR (E), this Agreement shall be deemed null, void and of
no further force or effect, and the parties hereto shall be released from all
future obligations hereunder with respect to the Station; provided, however,
that the obligations of Buyer and Sellers as in SECTIONS 6.3, 7.1, 13.2, 15.3
and 15.4, shall survive such termination. If this Agreement is subject to
termination as provided in SECTIONS 13.1(B) OR (C), the rights of the parties
shall be governed by ARTICLE 14.
ARTICLE 14.
REMEDIES
14.1. DEFAULT BY SELLERS.
If this Agreement is terminable by Buyer pursuant to
SECTION 13.1(B) and Buyer is not in material default or material breach of this
Agreement, Buyer shall be entitled:
(i) to require Sellers to consummate and specifically
perform the sale in accordance with SECTION 14.3, if necessary through
injunction or other court order or process; or
(ii) by written notice to Sellers, to terminate this
Agreement; and
(iii) to pursue any and all remedies against Sellers
available at law or in equity.
14.2. DEFAULT BY BUYER.
If this Agreement is terminated pursuant to SECTION 13.1(C)
and neither Seller is in material default or material breach of this Agreement,
Sellers shall be paid the Escrow Deposit as liquidated damages, it being agreed
that such payment shall constitute full payment for any and all damages
suffered by Sellers by reason thereof and that Sellers shall have no rights to
or claims for damages from Buyer or its Affiliates other than as set forth in
this Agreement.
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14.3. SPECIFIC PERFORMANCE.
Sellers acknowledge that the Assets to be sold and
delivered to Buyer pursuant to this Agreement are unique and that Buyer has no
adequate remedy at law if Sellers shall fail to perform any of their
obligations hereunder, and Sellers therefore confirm and agree that Buyer's
right to specific performance is essential to protect the rights and interests
of Buyer. Accordingly, Sellers hereby agree that if this Agreement is
terminable by Buyer pursuant to SECTION 13.1(B) and Buyer is not in material
default or material breach of this Agreement, Buyer shall have the right to
have all obligations, undertakings, agreements and other provisions of this
Agreement specifically performed by Sellers and that Buyer shall have the right
to obtain an order or decree of such specific performance in any of the courts
of the United States or of any state or other political subdivision thereof.
14.4. REMEDIES NOT EXCLUSIVE.
The remedies provided in this ARTICLE 14 shall be
cumulative and not exclusive.
ARTICLE 15.
GENERAL PROVISIONS
15.1. FURTHER ASSURANCES.
Subject to the terms and conditions herein provided, each
of the parties hereto agrees to use its commercially reasonable efforts to take
or cause to be taken all such further actions, 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 or in order to fully effectuate the purposes, terms and conditions of
this Agreement (including, without limitation, executing, delivering and filing
or causing to be executed, delivered and filed such further documents and
instruments and obtaining such consents (including Governmental Approvals), as
may be necessary or reasonably requested in connection with the consummation of
the transactions contemplated hereby). In case at any time after the Closing
Date any further action is necessary to carry out the purposes of this
Agreement, including, without limitation, the securing of consents of third
parties, each party hereto shall use its reasonable best efforts to take all
such necessary action.
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15.2. MAIL.
Sellers hereby authorize and empower Buyer from and after
the Closing Date (a) to receive and open mail addressed to the Station and (b)
to deal with the contents thereof in any manner Buyer sees fit, provided such
mail and the contents thereof relate to the Station or the Assets (other than
the Excluded Assets) or to any of the Assumed Liabilities. Sellers agree to
deliver to Buyer any mail, checks or other documents received by it pertaining
to the Station or the Assets (other than the Excluded Assets) or any of the
Assumed Liabilities. Buyer agrees to deliver to Sellers any mail which it
receives to which it is not entitled by reason of the Agreement or otherwise
and to which Sellers are entitled.
15.3. BROKERS.
Sellers represent to Buyer that Sellers have not engaged,
or incurred any liability (for any brokerage fees, finders' fees, commissions
or otherwise) to, any broker, finder or agent in connection with the
transactions contemplated by this Agreement; Buyer represents to Sellers that
Buyer has not engaged, or incurred any unpaid liability (for any brokerage
fees, finders' fees, commissions or otherwise) to, any broker, finder or agent
in connection with the transactions contemplated by this Agreement; and Sellers
agree to indemnify Buyer, and Buyer agrees to indemnify Sellers, against any
claims asserted against the other parties for any such fees or commissions by
any person purporting to act or to have acted for or on behalf of the
indemnifying party. Notwithstanding any other provision of this Agreement, this
SECTION 15.3 shall survive the Closing without limitation.
15.4. EXPENSES.
Except as otherwise provided in this Agreement, each party
hereto shall pay its own expenses incurred in connection with this Agreement
and in the preparation for and consummation of the transactions provided for
herein. Notwithstanding the foregoing, Buyer and Sellers shall share equally
any expenses in connection with any transfer, sales, filing or use Taxes or
fees applicable to, imposed upon or arising out of the transactions
contemplated hereby including, without limitation, any transfer Tax or filing
fee relating to the assignment of the FCC Licenses, the HSR Filing or the
transfer of Real Property or personal property.
15.5. NOTICES.
All notices, demands, requests, or other communications
which may be or are required to be given or made by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered, mailed by first-class registered or certified mail, return receipt
requested, postage prepaid, delivered by overnight air courier, or transmitted
by facsimile transmission addressed as follows:
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(i) If to Buyer:
Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33166
Attention: Joaquin F. Blaya
Facsimile: (305) 463-5001
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue
Washington, D.C. 20005
Attention: John C. Quale
Facsimile: (202) 393-5760
(ii) If to Sellers:
c/o One-On-One Sports, Inc.
1935 Techny Rd.
Suite 18
Northbrook, Illinois 60062
Attention: Christopher J. Brennan
Facsimile: (847) 400-3033
with a copy (which shall not constitute notice) to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Gregory S. Murray
Facsimile: (312) 558-5700
and
Fletcher, Heald & Hildreth, P.L.C.
11th Floor
1300 North 17th Street
Rosslyn, Virginia 22209
Attention: Richard Hildreth
Facsimile: (703) 812-0486
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or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall
be given or made in the manner described above shall be deemed sufficiently
given or made for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the facsimile transmission
confirmation or the affidavit of messenger being deemed conclusive but not
exclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
15.6. WAIVER.
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any
other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege, or the exercise of any other right,
power or privilege. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
15.7. BENEFIT AND ASSIGNMENT.
15.7(a) Except as hereinafter specifically provided in this
SECTION 15.7, no party hereto shall assign this Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
Sellers (if the assignor is Buyer) or Buyer (if the assignor is Sellers); and
any purported assignment contrary to the terms hereof shall be null, void and
of no force and effect. Buyer shall have the right to assign this Agreement to
any entity or entities controlling, controlled by, or under common control with
Buyer so long as any such assignment will not delay the Closing beyond the date
on which any Closing would otherwise occur in accordance with this Agreement;
PROVIDED, HOWEVER, that no such assignment by Buyer shall release Buyer from
its obligations hereunder. Any assignment in accordance with the terms hereof
shall become effective upon delivery of written notice in accordance with
SECTION 15.5.
15.7(b) This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns as permitted hereunder. No person or entity other than the parties
hereto or One-On-One Sports, Inc. is or shall be entitled to bring any action
to enforce any provision of this Agreement against any of the parties hereto,
and the covenants and agreements set forth in this Agreement shall be solely
for the benefit of, and shall be enforceable only by, the parties hereto, their
respective successors and assigns as permitted hereunder or One-On-One Sports,
Inc.
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15.8. ENTIRE AGREEMENT; AMENDMENT.
This Agreement, including the Schedules hereto and the
other instruments and documents referred to herein or delivered pursuant hereto
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior oral or written agreements, commitments
or understandings with respect to such matters, including, without limitation,
the Letter of Intent dated as of January 11, 1999. No amendment, modification
or discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the parties hereto.
15.9. SEVERABILITY.
If any part of any provision of this Agreement or any other
contract, agreement, document or writing given pursuant to or in connection
with this Agreement shall be invalid or unenforceable under applicable law,
such part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts of such
provisions or the remaining provisions of said contract, agreement, document or
writing.
15.10. HEADINGS.
The headings of the sections and subsections contained in
this Agreement are inserted for convenience only and do not form a part or
affect the meaning, construction or scope thereof.
15.11. GOVERNING LAW.
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed under and in accordance with the laws of the State of Delaware,
excluding the choice of law rules thereof.
15.12. SIGNATURE IN COUNTERPARTS.
This Agreement may be executed in separate counterparts,
none of which need contain the signatures of all parties, each of which shall
be deemed to be an original, and all of which taken together constitute one and
the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Asset Purchase Agreement, or has caused this Asset Purchase Agreement to
be duly executed and delivered in its name on its behalf, all as of the day and
year first above written.
SELLERS
-------
ONE-ON-ONE SPORTS LICENSE OF ILLINOIS, L.L.C
By: One-On-One Sports Radio of Illinois, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By:
------------------------------------
Christopher J. Brennan
President
ONE-ON-ONE SPORTS RADIO OF ILLINOIS, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By:
------------------------------------
Christopher J. Brennan
President
BUYER
-----
RADIO UNICA CORP.
By:
------------------------------------
Joaquin F. Blaya
Chairman and Chief Executive Officer
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ONE-ON-ONE SPORTS, INC.
JOINDER AGREEMENT
As a material inducement for Buyer to enter into the
foregoing Asset Purchase Agreement of even date herewith and for other valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
One-On-One Sports, Inc., a Delaware corporation ("Parent") and the ultimate
parent of each Seller, hereby joins in and agrees to be bound by the provisions
of the Asset Purchase Agreement as they relate to Sellers. In addition, Parent
acknowledges and agrees that (i) any claim of Buyer arising under the Asset
Purchase Agreement or under any other Transaction Document may be asserted
against Parent and (ii) Parent shall be jointly and severally liable under the
Asset Purchase Agreement and the other Transaction Documents for any default in
the performance of the obligations of Sellers under such documents or for the
breach by either Seller of any representation, warranty, covenant or agreement
contained in such documents to the extent of Sellers' liability.
Parent represents and warrants to Buyer as follows: (a)
Parent is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware; (b) Parent has all requisite power and
authority to execute and deliver this Joinder Agreement and to consummate the
transactions contemplated hereby; (c) the execution, delivery and performance
of this Joinder Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
proceedings on the part of Parent and no other corporate proceedings or actions
on the part of Parent, its board of directors or its shareholders is necessary
therefor; and (d) this Joinder Agreement constitutes a valid and binding
agreement and obligation of Parent, enforceable in accordance with its terms.
Dated as of this ___, day of _________, 1999.
ONE-ON-ONE SPORTS, INC.
By:
-------------------------------
Name: Christopher J. Brennan
Title: President