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Exhibit 2(i)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
this 29th day of March, 2000 by and between YAVAPAI BROADCASTING CORPORATION, an
Arizona corporation (hereinafter referred to as "Buyer") and REGENT LICENSEE OF
FLAGSTAFF, INC., a Delaware corporation ("RLF") and REGENT BROADCASTING OF
FLAGSTAFF, INC. ("RBF," and with RLF collectively referred to as "Seller").
RECITALS
WHEREAS, Seller owns and operates radio stations KZGL-FM licensed to
Cottonwood, Arizona, and KVNA-AM and FM licensed to Flagstaff, Arizona (together
the "Stations" and each individually, a "Station") pursuant to licenses issued
by the Federal Communications Commission ("FCC"), and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, certain
assets and assume certain obligations associated with the ownership and
operation of the Stations, all on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE OF ASSETS
1.1 Transfer of Assets. On the terms and subject to the conditions
hereof and subject to Section 1.2, on the Closing Date (as hereinafter defined),
Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer
shall purchase and assume from Seller, all of the right, title and interest of
Seller in and to all of the assets, properties, interests and rights of Seller
of whatsoever kind and nature, real and personal, tangible and intangible, owned
or leased (to the extent of Seller's leasehold interest) by Seller as the case
may be, wherever situated, which are used or held for use in the operation of
the Stations (the "Stations Assets"), including but not limited to all of
Seller's right, title and interest in and to the assets, properties, interests
and rights described in this Section 1.1:
1.1.1 all licenses, permits and other authorizations issued to
Seller by any governmental or regulatory authority including without limitation
those issued by the FCC (the licenses, permits and authorizations issued by the
FCC are hereafter referred to as the "Stations Licenses") used or useful in
connection with the operation of the Stations, including but not limited to
those described in Schedule 7.4, along with renewals or modifications of such
items between the date hereof and the Closing Date;
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1.1.2 all equipment, electrical devices, antennae, cables,
tools, hardware, office furniture and fixtures, office materials and supplies,
inventory, motor vehicles, spare parts and all other tangible personal property
of every kind and description, and Seller's rights therein, owned, leased (to
the extent of Seller's leasehold interest) or held by Seller and used or useful
in connection with the operations of the Stations, including but not limited to
those items described or listed in Schedule 7.7, together with any replacements
thereof and additions thereto, made between the date hereof and the Closing
Date, and less any retirements or dispositions thereof made between the date
hereof and the Closing Date in the ordinary course of business and consistent
with past practices of Seller; provided, however, Seller agrees that the value
of all such assets retired or disposed of and not replaced with an asset of like
kind and quality shall not exceed $5,000 in the aggregate unless Seller has
obtained the prior written approval of Buyer which shall not be unreasonably
withheld.
1.1.3 all time sales agreements and Trade Agreements (time
sales agreements for consideration other than cash), and (i) all other
contracts, agreements, leases and legally binding contractual rights of any
kind, written or oral, relating to the operation of the Stations and which are
listed in Schedule 7.8 and Schedule 7.9, together with (ii) all contracts,
agreements, leases and legal binding contractual rights entered into or acquired
by Seller between the date hereof and the Closing Date which the Buyer
specifically agrees at Closing to assume (collectively (i) and (ii) above are
referred to herein as the "Contracts").
1.1.4 all of Seller's rights in and to the call letters
KZGL-FM and KVNA-AM and FM, as well as all of Seller's rights in and to all
trademarks, trade names, service marks, franchises, copyrights, including
registrations and applications for registration of any of them, computer
software programs and programming material of whatever form or nature (to the
extent transferable without adversely affecting Seller's rights thereto),
jingles, slogans, the Stations' logos and all other logos or licenses to use
same and all other intangible property rights of Seller, which are used or
useful in connection with the operation of the Stations, including but not
limited to those listed in Schedule 7.12 (collectively, the "Intellectual
Property") together with any associated goodwill and any additions thereto
between the date hereof and the Closing Date;
1.1.5 all programming materials and elements of whatever form
or nature owned by Seller, whether recorded on tape or other medium or intended
for live performance, and all copyrights owned by or licensed to Seller that are
used or useful in connection with the operation of the Stations, including all
such programs, materials, elements and copyrights acquired by Seller between the
date hereof and the Closing Date;
1.1.6 all of Seller's rights in and to all the files,
documents, records, and books of account relating to the operation of the
Stations or to the Stations Assets, including, without limitation, the Stations'
local public files, programming information and studies, blueprints, technical
information and engineering data, news and advertising studies or consulting
reports, marketing and demographic data, sales correspondence and account files,
lists of advertisers, promotional materials, credit and sales reports and
filings with the FCC and all written contracts, whether current or expired,
including without limitation, the Contracts to be assigned hereunder,
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logs, books and records relating to employees, financial, accounting and
operation matters, but excluding records relating solely to any Excluded Asset
(as hereinafter defined);
1.1.7 all of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Stations Assets and all similar
rights against third parties relating to items included in the Stations Assets;
1.1.8 the leasehold interests in the real property and
fixtures thereon described in Section 7.8; and
1.1.9 except for Excluded Assets, such other assets,
properties, interests and rights owned by Seller that are located at the
Station's facilities and used or useful in connection with the operation of the
Stations.
The Stations Assets shall be transferred to Buyer free and clear of all
debts, security interests, mortgages, trusts, claims, pledges or other liens,
liabilities, encumbrances or rights of third parties whatsoever
("Encumbrances"), except for Permitted Encumbrances (as defined in Section 7.7)
and except as set forth in Schedule 7.7 and Schedule 7.8.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that the Stations Assets shall not
include the following assets along with all rights, title and interest therein
(the "Excluded Assets"):
1.2.1 all cash and cash equivalents of Seller on hand and/or
in banks, including without limitation investment securities, certificates of
deposit, commercial paper, treasury bills, marketable securities, asset or money
market accounts and all such similar accounts or investments;
1.2.2 all investment securities and accounts receivable or
notes receivable existing on the Closing Date arising from services performed by
Seller in connection with the operation of the Stations prior to the Closing
Date (which shall not include accounts receivable generated by Buyer under the
Time Brokerage Agreement identified below);
1.2.3 all property owned by Seller or any affiliate of Seller
not located at the Stations' facilities and not used by Seller in connection
with the operation of the Stations;
1.2.4 subject to the limitation set forth in Section 1.1.2 of
this Agreement, all tangible and intangible personal property of Seller disposed
of or consumed in the ordinary course of business consistent with the past
practices of Seller between the date of this Agreement and the Closing Date;
1.2.5 all Contracts that have terminated or expired prior to
the Closing Date in the ordinary course of business consistent with the past
practices of Seller;
1.2.6 Seller's corporate minute books and records, corporate
stock record books and such other books and records as pertain to the
organization, existence or share capitalization
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of Seller and duplicate copies of such records as are necessary to enable Seller
to file its tax returns and reports, as well as any other records or materials
relating to Seller generally and not involving or relating to the Stations
Assets or the operation or operations of the Stations;
1.2.7 contracts of insurance, and any insurance proceeds or
claims made by, Seller relating to property or equipment repaired, replaced or
restored by Seller prior to the Closing Date;
1.2.8 all pension, profit sharing or cash or deferred (Section
401 (k)) plans and trusts and the assets thereof and any other employee benefit
plan or arrangement and the assets thereof, if any, maintained by Seller; and
1.2.9 any right, property or asset described in Schedule
1.2.9.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1 Assumption of Obligations. Subject to the provisions of this
Section 2. 1, Section 2.2 and Section 3.3, on the Closing Date, Buyer shall
assume the obligations of Seller arising or to be performed on and after the
Closing Date (except to the extent such obligations represent liabilities for
activities, events or transactions occurring, or conditions existing, on or
prior to the Closing Date) under: (a) the Contracts; (b) all property taxes and
other governmental charges on the Stations Assets; and (c) all time sales
agreements and Trade Agreements. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
Liabilities."
2.2 Retained Liabilities Notwithstanding anything contained in this
Agreement to the contrary, Buyer expressly does not, and shall not, assume or
agree to pay, satisfy, discharge or perform and will not be deemed by virtue of
the execution and delivery of this Agreement or any agreement, instrument or
document delivered pursuant to or in connection with this Agreement or otherwise
by reason of or in connection with the consummation of the transactions
contemplated hereby or thereby, to have assumed or to have agreed to pay,
satisfy, discharge or perform, any liabilities, obligations or commitments of
Seller of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or not disclosed to Buyer, other than the Assumed
Liabilities. Seller will retain and pay, satisfy, discharge and perform in
accordance with the terms thereof, all liabilities and obligations of the
Seller, other than the Assumed Liabilities, including but not limited to, the
obligation to assume, perform, satisfy or pay any liability, obligation,
agreement, debt, charge, claim, judgment or expense incurred by or asserted
against Seller related to taxes, environmental matters, stock option, pension or
retirement plans or trusts, profit-sharing plans, employment contracts, employee
benefits, severance of employees, product liability or warranty, negligence,
contract breach or default, or other obligations, claims or judgments asserted
against Buyer as successor in interest to Seller. All of such liabilities,
obligations and commitments of Seller described in this Section 2.2 shall be
referred to herein collectively as the "Retained Liabilities."
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ARTICLE 3
CONSIDERATION; ACCOUNTS RECEIVABLE
3.1 Delivery of Consideration. In consideration for the sale of the
Stations Assets to Buyer, in addition to the assumption of certain obligations
of Seller pursuant to Section 2.1 above, Buyer shall, at the Closing (as
hereinafter defined), deliver to Seller Two Million Dollars ($2,000,000) by wire
transfer of immediately available funds, subject to adjustment pursuant to the
provisions of Sections 3.2 and 3.3 below (the "Purchase Price"). Notwithstanding
the foregoing, the parties agree that at the Closing, Buyer, Seller and National
City Bank, in Cambridge, Ohio, as Escrow Agent (the "Indemnification Escrow
Agent"), shall enter into an Indemnification Escrow Agreement in the form of
Exhibit A hereto (the "Indemnification Escrow Agreement") pursuant to which
Seller shall deposit with the Indemnification Escrow Agent One Hundred Thousand
Dollars ($100,000), which funds shall be held in escrow for a period of at least
twelve (12) months from the Closing Date and will be used to satisfy
indemnification claims of Buyer pursuant to Section 15.2.1 hereof, and which
funds shall otherwise be administered and released as specifically provided for
in the Indemnification Escrow Agreement.
3.2 Escrow Deposit. (a) Within two (2) business days after the
execution and delivery of this Agreement, Buyer, Seller and National City Bank,
in Cambridge, Ohio, as Escrow Agent, or an alternative escrow agent (the
"Deposit Escrow Agent"), shall enter into a Deposit Escrow Agreement in the form
of Exhibit B hereto (the "Deposit Escrow Agreement") pursuant to which Buyer
shall deposit the amount described below as a deposit on the amount of the
Purchase Price. Such amounts held in escrow shall be applied as set forth herein
and in the Deposit Escrow Agreement.
(b) Pursuant to the terms of the Deposit Escrow Agreement,
Buyer shall wire transfer One Hundred Thousand Dollars ($100,000) to an escrow
account established pursuant to the Deposit Escrow Agreement (the "Escrow
Deposit"). At the Closing, the Escrow Deposit shall be applied to the Purchase
Price to be paid to Seller and the interest accrued thereon shall be paid to
Buyer. As more fully described in the Deposit Escrow Agreement: (a) in the event
this Agreement is terminated because of Buyer's material breach of this
Agreement and all other conditions to Closing are at such time satisfied or
waived (other than such conditions as can reasonably be expected to be satisfied
by the Closing), the Escrow Deposit shall be paid to Seller as liquidated
damages as provided in Section 16.4 hereto for Buyer's material breach of this
Agreement (the payment of such sum to Seller shall discharge any liability Buyer
may have to Seller), and the interest accrued on the Escrow Deposit shall be
paid to Buyer; and (b) in the event this Agreement is terminated under any
circumstances other than those set forth in the immediately preceding clause
(a), the Escrow Deposit and the interest accrued thereon shall be paid or
returned to Buyer.
3.3 Proration of Income and Expenses.
3.3.1. Except as otherwise provided herein, all deposits,
reserves and prepaid and deferred income and expenses relating to the Stations
Assets or the Assumed Liabilities and
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arising from the conduct of the business and operations of the Stations shall be
prorated between Buyer and Seller in accordance with generally accepted
accounting principles as of 11:59 p.m. local Arizona time, on the date
immediately preceding the Closing Date. Such prorations shall include, without
limitation, all ad valorem, real estate, property taxes and other governmental
charges on the Stations Assets (but excluding taxes arising by reason of the
transfer of the Stations Assets as contemplated hereby which shall be paid as
set forth in Section 13.2), business and license fees, music and other license
fees (including any retroactive adjustments thereof, which retroactive
adjustments shall not be subject to the sixty-day limitation set forth in
Section 3.3.2), utility expenses, vacation pay, amounts due or to become due
under Contracts, rents and similar prepaid and deferred items.
3.3.2 Except as otherwise provided herein, the prorations and
adjustments contemplated by this Section 3.3, to the extent practicable, shall
be made on the Closing Date. As to those prorations and adjustments not capable
of being ascertained on the Closing Date, an adjustment and proration shall be
made within sixty (60) calendar days after the Closing Date.
3.3.3 In the event of any disputes between the parties as to
such adjustments, the amounts not in dispute shall nonetheless be paid at the
time provided in Section 3.3.2 and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the parties, and
the fees and expenses of such accountant shall be paid one-half by Seller and
one-half by Buyer.
3.4 Allocation of Purchase Price. The parties have agreed upon an
allocation of the Purchase Price among the Stations Assets, a copy of which is
attached to this Agreement as Exhibit C. Seller and Buyer agree to use the
agreed upon allocation, if any, for all tax purposes, including without
limitation, those matters subject to Section 1060 of the Internal Revenue Code
of 1986, as amended.
3.5 Time Brokerage Agreement. Upon the lapse of the right of Buyer to
terminate this Agreement under Section 17.10 hereof, Buyer and RBF will enter
into a Time Brokerage Agreement, in the form of Exhibit D hereto (the "Time
Brokerage Agreement"), pursuant to which RBF will make available to Buyer the
broadcasting transmission facilities of the Stations and/or cause to be
broadcast on the Stations Buyer's programming from the Commencement Date (as
defined in the Time Brokerage Agreement) and during the term thereof. An Event
of Default by either party under the Time Brokerage Agreement shall constitute a
material default under this Agreement and insofar as the cure period specified
in the Time Brokerage Agreement has expired with respect to the default, no
further cure period shall be afforded under the provisions hereof.
3.6 Accounts Receivable. Buyer acknowledges that Seller's accounts
receivable arising prior to the Closing Date in connection with the operation of
the Stations, including but not limited to accounts receivable for advertising
revenues for programs and announcements performed prior to the Closing Date
other than for Buyer under the Time Brokerage Agreement, shall remain the
property of RBF ("Seller Accounts Receivable") and that Buyer shall not acquire
any beneficial right or interest therein or responsibility therefor under this
Agreement. For the period of thirty (30) days following the Closing Date or
ninety (90) days following the
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Commencement Date under the Time Brokerage Agreement, whichever is shorter (the
"Collection Period"), Buyer shall for no remuneration use substantially the same
efforts to collect the Seller Accounts Receivable as Buyer uses to collect
Buyer's own accounts receivable in the normal and ordinary course of business,
and Buyer will apply all such amounts collected in connection with the Seller
Accounts Receivable collected in connection with the Seller Accounts Receivable
to the debtor's oldest account receivable first, except that any such accounts
collected by Buyer from persons who are also indebted to Buyer for programs and
announcements broadcast on any of the Stations may be applied to Buyer's account
if so directed by the debtor or under circumstances in which there is a bona
fide dispute between RBF and such account debtor with respect to such account.
Buyer's obligation and authority shall not extend to the institution of
litigation, employment of counsel or a collection agency or any other
extraordinary means of collection. Buyer agrees to reasonably cooperate with
RBF, at RBF's expense, as to any litigation or other collection efforts
instituted by RBF to collect any delinquent Seller Accounts Receivable. During
the Collection Period, neither Seller nor its agents shall make any direct
solicitation of any account debtor for collection purposes or institute
litigation for the collection of amounts due except with respect to any accounts
that may be reassigned to RBF. Any amounts relating to the Seller Accounts
Receivable that are paid directly to Seller shall be retained by Seller, but
Seller shall provide Buyer with prompt notice of any such payment. Except as
otherwise provided herein, amounts collected by Buyer on account of Seller
Accounts Receivable shall be remitted in full to RBF at the end of the
Collection Period, accompanied by an accounting showing the amount it received
on each account, provided that Buyer may deduct from such amounts, and be
responsible for payment of, commissions due on the collected Seller Accounts
Receivable. At the conclusion of the Collection Period and after remittance of
all amounts collected, Buyer will thereafter have no further responsibility with
respect to the collection of the Seller Accounts Receivable, and Buyer may apply
all collections received by Buyer from any party who continues business with
Buyer to obligations owing to Buyer, except for any payment received by Buyer
which such party specifies is for amounts owed to RBF, in which event such
specified amounts shall be paid over to RBF. Buyer shall not have the right to
compromise, settle or adjust the amounts of any of the Seller Accounts
Receivable without RBF's prior written consent. RBF shall promptly pay all sales
commissions relating to all of its accounts receivable whenever RBF receives
payment thereon, except to the extent previously paid by Buyer as provided
herein.
ARTICLE 4
CLOSING
4.1 Closing. Except as otherwise mutually agreed upon by Buyer and
Seller, the consummation of the transactions contemplated herein (the "Closing")
shall occur within ten (10) business days after the later to occur of (a) the
satisfaction or waiver of each condition to closing contained herein, other than
such conditions as are reasonably anticipated to be satisfied at Closing
(provided that each party hereto shall use its reasonable best efforts to cause
each condition to closing to be satisfied so that the Closing may occur at the
earliest possible date); and (b) the issuance of the Final Order (as defined
below), or such other date as may be mutually agreed by the parties hereto (the
"Closing Date"); provided, however, that unless Seller's senior lenders object
Buyer may in its sole discretion waive the requirement that a Final Order be
issued and elect (subject to clause (a) above) to close at any time (upon not
less than ten (10) business
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days' notice to Seller) after the release of initial FCC approval on public
notice that it has consented to the transaction contemplated hereby (the
"Initial Approval"). For purposes of this Agreement, "Final Order" (and "Final")
means an order or grant by the FCC which is no longer subject to reconsideration
or review by the FCC or a court of competent jurisdiction and pursuant to which
the FCC consents, as the case may be, to the assignments of the FCC Licenses
contemplated by this Agreement or to the renewal of the FCC Licenses, each such
order or grant being without the imposition of any conditions adverse to Buyer
or any Affiliate (as hereinafter defined) of Buyer with respect to the
assignment of the FCC Licenses to Buyer or the continued operation by Buyer of
the Stations or the Stations Assets. In the event that the parties close before
the Initial Approval has become a Final Order, the parties shall enter into an
Unwind Agreement mutually acceptable to the parties and their respective senior
lenders. The Closing shall be held in the offices of Seller's counsel in
Cincinnati, Ohio, or at such place and in such manner as the parties hereto may
agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
5.1 FCC Consent. It is specifically understood and agreed by Buyer and
Seller that the Closing and the assignment of the Stations Licenses and the
transfer of the Stations Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC without the imposition of any
conditions adverse to Buyer or any Affiliate of Buyer (the "FCC Consent").
5.2 FCC Application. Within five (5) business days after the effective
date of this Agreement, Buyer and RLF shall file an application with the FCC for
the FCC Consent (the "FCC Application"). Buyer and RLF shall prosecute the FCC
Application with all reasonable diligence and otherwise use their best efforts
to obtain the FCC Consent as expeditiously as practicable (but neither Buyer nor
RLF shall have any obligation to satisfy complainants or the FCC by taking any
steps which would have a material adverse effect upon Buyer or RLF or upon any
of their respective Affiliates). If the FCC Consent imposes any condition on
Buyer or RLF or any of their respective Affiliates, such party shall use its
best efforts to comply with such condition; provided, however, that neither
Buyer nor RLF shall be required hereunder to comply with any condition that
would have a material adverse effect upon it or any of its Affiliates. If
reconsideration or judicial review is sought with respect to the FCC Consent,
the party affected shall vigorously oppose such efforts for reconsideration or
judicial review; provided, however, that nothing herein shall be construed to
limit either party's right to terminate this Agreement pursuant to Article 16
hereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to
Seller, each of which is true and correct on the date hereof, shall survive the
Closing and shall be unaffected by any investigation heretofore or hereafter
made by Seller:
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6.1 Organization and Standing. Buyer is a corporation duly organized
and validly existing under the laws of the State of Arizona.
6.2 Authorization and Binding Obligations. Buyer has all necessary
legal power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Stations Assets and to
carry on the business of the Stations upon the consummation of the transactions
contemplated by this Agreement. Buyer's execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all necessary action on its part and, assuming the due
authorization, execution and delivery of this Agreement by Seller, this
Agreement will constitute the legal, valid and binding obligation of Buyer,
enforceable against it in accordance with its terms, except as limited by laws
affecting creditors' rights or equitable principles generally.
6.3 Qualification As Assignee. To the best of Buyer's knowledge, there
are no facts which, under the Communications Act of 1934, as amended, or the
existing rules and regulations of the FCC, would disqualify Buyer as an assignee
of the Stations Licenses. Buyer has, and will continue to have to the Closing,
funds committed and readily available to it sufficient to pay all amounts due at
the Closing, as evidenced by the documentation set forth in Schedule 6.3.
6.4 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 hereof with respect to governmental consents, the
execution, delivery and performance of this Agreement by Buyer: (a) do not
conflict with the provisions of the articles of organization or operating
agreement of Buyer; (b) do not require the consent of any third party; (c) will
not violate any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority to which Buyer or any of its
affiliates is a party; and (d) will not, either alone or with the giving of
notice or the passage of time, or both, conflict with, constitute grounds for
termination of or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any agreement, instrument, license or permit to
which Buyer is now subject.
6.5 Commissions or Finder's Fees. Neither Buyer nor any person or
entity acting on behalf of Buyer has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto
to any person or entity.
6.6 Litigation. Except as set forth on Schedule 6.6, Buyer is not
subject to any judgment, award, order, writ, injunction, arbitration decision or
decree prohibiting the consummation of the transactions contemplated by this
Agreement, and there are no suits, legal proceedings or investigations of any
nature pending, or to the best knowledge of Buyer, threatened against or
affecting Buyer that would affect Buyer's ability to carry out the transactions
contemplated by this Agreement.
6.7 Full Disclosure. No representation or warranty made by Buyer
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Buyer pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Buyer's knowledge, there is no impending or
contemplated event
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or occurrence that would cause any of the foregoing representations not to be
true and complete on the date of such event or occurrence as if made on that
date.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Buyer,
each of which is true and correct on the date hereof, shall survive the Closing
and shall be unaffected by any investigation heretofore or hereafter made by
Buyer:
7.1 Organization and Standing. Each of RBF and RLF is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, RBF is authorized to conduct business within the State of
Arizona, and each of RBF and RLF has the requisite power and authority to own,
lease and operate the Stations Assets owned or leased by it and to carry on the
business of the Stations as now being conducted by it and as proposed to be
conducted by it between the date hereof and the Closing Date.
7.2 Authorization and Binding Obligation. Seller has the power and
authority, and has taken all necessary and proper action to enter into and
perform this Agreement and to consummate the actions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Seller and,
assuming the due authorization, execution and delivery of this Agreement by
Buyer, constitutes the legal, valid and binding obligation of Seller enforceable
against it in accordance with its terms, except as limited by laws affecting the
enforcement of creditors' rights or equitable principles generally.
7.3 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 with respect to governmental consents and in Schedule 7.9
with respect to required consents, the execution, delivery and performance of
this Agreement by Seller: (a) do not require the consent of any third party
(including, without limitation, the consent of any governmental, regulatory,
administrative or similar authority); (b) will not conflict with, result in a
breach of, or constitute a violation of or default under, the provisions of
Seller's certificate of organization or bylaws, or any applicable law, judgment,
order, injunction, decree, rule, regulation or ruling of any governmental
authority to which Seller is a party or by which Seller or any of the Stations
Assets are bound; (c) will not either alone or with the giving of notice or the
passage of time, or both, conflict with, constitute grounds for termination of
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any Contract, agreement, instrument, license or permit to which
Seller or any of the Stations Assets is now subject; and (d) will not result in
the creation of any lien, charge or encumbrance on any of the Stations Assets.
7.4 Government Authorizations.
7.4.1 Schedule 7.4 hereto contains a true and complete list of
the Stations Licenses which are required for the lawful conduct of the business
and operations of the Stations in the manner and to the full extent they are
presently conducted (including, without limitation, auxiliary licenses
associated with each Station and all tower registrations), except for such
licenses, permits and authorizations the failure of which to obtain would not
have a material
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adverse effect on Buyer or the Stations. Seller has delivered to Buyer true and
complete copies of the Stations Licenses listed in Schedule 7.4, including any
and all amendments and other modifications thereto.
7.4.2 RLF is the authorized legal holder of the Stations
Licenses. Except as set forth Schedule 7.4, none of the Stations Licenses is
subject to any restrictions or conditions which would materially limit the full
operation of the Stations as now operated.
7.4.3 Except as set forth in Schedule 7.4, and except for
matters affecting the radio broadcast industry generally, there are no
complaints, petitions or proceedings pending or, to the best of Seller's
knowledge, threatened as of the date hereof before the FCC or any other
governmental or regulatory authority relating to the business or operations of
the Stations. Except as set forth on Schedule 7.4, there are no applications
pending by RLF before the FCC. Except as set forth in Schedule 7.4, the Stations
Licenses are in good standing, are in full force and effect and are unimpaired
by any act or omission of Seller or its directors, officers, or employees, and
the operations of the Stations are in accordance with the Stations Licenses.
Except as set forth on Schedule 7.4, no proceedings are pending or, to the best
of Seller's knowledge, threatened, and to the best of Seller's knowledge there
has not been any act or omission of Seller or any of its directors, officers, or
employees, which may result in the revocation, modification, non-renewal or
suspension of any of the Stations Licenses, the denial of any pending
applications, the issuance of any cease and desist order, the imposition of any
administrative actions by the FCC or any other governmental or regulatory
authority with respect to the Stations Licenses or which may affect Buyer's
ability to continue to operate the Stations as they are currently operated.
7.4.4 Except as set forth on Schedule 7.4, each Station is
operating with the maximum facilities specified in the respective Station
License.
7.4.5 To the best of Seller's knowledge: (i) none of the
Stations is causing objectionable interference to the transmissions of any other
broadcast station or communications facility nor has any of the Stations
received any complaints with respect thereto; and (ii) no other broadcast
station or communications facility is causing objectionable interference to
respective transmissions of either Station.
7.4.6 Seller has no reason to believe that the Stations
Licenses will not be renewed in their ordinary course.
7.4.7 All reports, forms, and statements required to be filed
by RLF with the FCC with respect to the Stations since the grant of the last
renewal of the Stations Licenses have been filed and are substantially complete
and accurate.
7.4.8 To the best knowledge of Seller, there are no facts
which, under the Communications Act of 1934, as amended, or the existing rules
and regulations of the FCC, would disqualify RLF as assignor of the Stations
Licenses or cause the Stations Licenses not to be renewed in their ordinary
course.
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7.4.9 As if the Closing Date, the operation of the Stations
and all of the Stations Assets will be in compliance in all respects with ANSI
Radiation Standards C95.1-1992.
7.5 Compliance with FCC Regulations. Except as specified in Schedule
7.4, the operation of the Stations and all of the Stations Assets are in
compliance in all material respects with: (a) all applicable engineering
standards required to be met under applicable FCC rules; and (b) all other
applicable federal, state and local rules, regulations, requirements and
policies, including, but not limited to, equal employment opportunity policies
of the FCC, and all applicable painting and lighting requirements of the FCC and
the Federal Aviation Administration to the extent required to be met under
applicable FCC rules and regulations, and to the best of Seller's knowledge,
there are no filed claims to the contrary.
7.6 Taxes. Seller has filed all federal, state, local and foreign
income, franchise, sales, use, property, excise, payroll and other tax returns
required by law to be filed by it and has paid in full all taxes, estimated
taxes, interest, assessments, and penalties due and payable by it. All returns
and forms which have been filed have been true and correct in all material
respects and no tax or other payment in an amount other than as shown on such
returns and forms is required to be paid by Seller and has not been paid by
Seller. There are no present disputes as to taxes of any nature payable by
Seller which in any event could adversely affect any of the Stations Assets or
the operation of the Stations by Buyer. Seller has not been advised that any of
its tax returns, federal, state, local or foreign, have been or are being
audited. Seller does not and will not in the future have any liability, fixed or
contingent, for any unpaid federal, state or local taxes or other governmental
or regulatory charges whatsoever (including without limitation withholding and
payroll taxes) which could result in a lien on the Stations Assets after
conveyance thereof to Buyer or in any other form of transferee liability to
Buyer.
7.7 Personal Property. Schedule 7.7 hereto contains a list of all
material items of tangible personal property owned by RBF and used in the
conduct of the business and operations of the Stations. Schedule 7.7, also
separately lists any material tangible personal property leased by RBF pursuant
to leases included within the Contracts. Except as disclosed in Schedule 7.7 RBF
has, and following the Closing, Buyer will have, good and marketable title to
all of the items of tangible personal property which are included in the
Stations Assets (other than those subject to lease) and, except as set forth in
Schedule 7.7, all of which will be paid at or prior to Closing, none of such
Stations Assets is, or at the Closing will be, subject to any security interest,
mortgage, pledge, lease, license, lien, encumbrance, title defect or other
charge, except for liens for taxes not yet due and payable, and except for the
Assumed Liabilities ("Permitted Encumbrances"). The properties listed in
Schedule 7.7, along with those properties subject to lease and included among
the Contracts, constitute all material tangible personal property necessary to
operate the Stations as the same are now being operated. Except as set forth in
Schedule 7.7, all items of tangible personal property included in the Stations'
Assets are in good operating condition and repair (ordinary wear and tear
excepted), are free from all material defect and damage, are suitable for the
purposes for which they are now being used, and have been properly maintained by
Seller in a manner consistent with generally accepted standards of good
engineering practice.
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7.8 Real Property.
7.8.1 Seller owns no real property. Schedule 7.8 hereto
contains a complete and accurate list and description of all real property
(including without limitation, real property relating to the towers,
transmitters, studio sites and offices of the Stations) leased by RBF and used
by RBF in connection with the operations of the Stations (the "Leased Real
Estate").
7.8.2 RBF enjoys quiet possession of all Leased Real Estate.
There are no present disputes or claims with respect to offsets or defenses by
any party against the other under any of the Contracts relating to the Leased
Real Estate. Seller has delivered to Buyer true and complete copies of all
Contracts relating to the Leased Real Estate. Except as set forth in Schedule
7.9 hereto, the assignment of the Contracts relating to the Leased Real Estate
to Buyer will not permit the other party to accelerate the rent, cause the terms
thereof to be renegotiated or constitute a default thereunder, and will not
require the consent of any such party to the assignment thereof to Buyer.
7.8.3 Except as described in Schedule 7.8, to the best of
Seller's knowledge none of the buildings, structures, improvements or fixtures
constructed on any Leased Real Estate, in connection with the operation of the
Stations, including, but not limited to, all towers, guy wires and guy anchors
and ground radials, encroach upon adjoining real property, and all such
buildings, structures, improvements and fixtures are constructed and are
operated and used in conformance with all "set back" lines, easements,
covenants, restrictions and all applicable building, fire, zoning, health and
safety laws and codes. To the best of Seller's knowledge, no utility lines
serving such Leased Real Estate pass over the lands of a third party except
where appropriate easements have been obtained. To the best of Seller's
knowledge, except as described in Schedule 7.8, all buildings, structures,
towers, antennae, improvements and fixtures situated on the Leased Real Estate
are in good and technically sound operating condition, ordinary wear and tear
excepted, have no latent structural mechanical or other defects of material
significance, are reasonably suitable for the purposes for which they are being
used and each has adequate rights of ingress and egress, utility service for
water and sewer, telephone, electric and/or gas, and sanitary service for the
conduct of the business and operations of the Stations as presently conducted.
There is no pending or, to the best knowledge of Seller, threatened condemnation
or other legal proceeding or action of any kind relating to such real property
and/or title thereto.
7.9 Contracts. Schedule 7.9 lists all Contracts to which Seller is a
party, or which are binding on Seller, as of the date of this Agreement, except
for contracts which are not to be assumed by or assigned to Buyer. Those
Contracts listed on Schedule 7.9, if any, requiring the consent of a third party
to assignment are identified by an asterisk in the left margin of Schedule 7.9.
Those Contracts, if any, that Seller and Buyer have agreed are material to the
operation of the Stations Assets and the valid assignment of which and receipt
by Buyer of consents thereto (along with appropriate estoppel certificates for
the leases related to the Leased Real Estate) is a condition to the consummation
of the transactions contemplated hereby (the "Fundamental Contracts") are
identified by an "F" in the left margin of Schedule 7.9.
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7.10 Status of Contracts, etc. Seller has delivered to Buyer true and
complete copies of all material written Contracts and true and complete
memoranda of all material oral Contracts, including any and all amendments and
other modifications thereto. All of such material Contracts are in full force
and effect and are valid, binding and enforceable in accordance with their
respective terms, except as limited by laws affecting creditors' rights or
equitable principles generally. Seller has complied in all respects with all
material Contracts and is not in default beyond any applicable grace periods
under any thereof and, to the best of Seller's knowledge, no other contracting
party is in default under any thereof.
7.11 Environmental. To the best of Seller's knowledge, except as set
forth in Schedule 7.11, Seller has complied with all federal, state and local
environmental laws, rules and regulations as in effect on the date hereof
applicable to each of the Stations and its operations, including but not limited
to the FCC's guidelines regarding RF radiation. No hazardous or toxic waste,
substance, material or pollutant (as those or similar terms are defined under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. sections 9601 et seq., Toxic Substances Control Act.
15 U. S. C. sections 2601 et seq., the Resource Conservation and Recovery Act of
1976, 42 U.S.C. sections 6901 et seq. or any other applicable federal, state and
local environmental law, statute, ordinance, order, judgment rule or regulation
relating to the environment or the protection of human health ("Environmental
Laws")), including but not limited to, any asbestos or asbestos-related
products, oils, or petroleum-derived compounds, CFCs, PCBs, or underground
storage tanks (collectively Hazardous Materials"), have been released, emitted
or discharged by Seller or, to the best of Seller's knowledge, any predecessor
of Seller, in violation of applicable laws or regulations, or, to the best of
Seller's knowledge, are currently located in quantities in violation of
applicable laws and regulations in, on, or under or about the real property on
which the Stations Assets are situated, including without limitation the
transmitter sites, or contained in the tangible personal property included in
the Stations Assets which were placed there by Seller or any predecessor of
Seller. To the best of Seller's knowledge, the Stations Assets and RBF's use
thereof are not in violation of any Environmental Laws or any occupational,
safety and health or other applicable law now in effect. With respect to Buyer,
Seller shall be as of the Closing Date and thereafter solely responsible for all
environmental liabilities, of whatsoever kind and nature, arising out of or
attributable to the operation or ownership of the Stations Assets prior to the
Closing Date.
7.12 Intellectual Property. Schedule 7.12 hereto is a true and complete
list of all material Intellectual Property applied for, registered or issued to,
and owned by RBF or under which RBF is a licensee and which is used in the
conduct of Seller's business and operations, except for computer software
licensed for use by the Stations. Except as set forth on Schedule 7.12, to the
best of Seller's knowledge: (a) RBF's right, title and interest in the
Intellectual Property as owner or licensee, as applicable, is free and clear of
all liens, claims, encumbrances, rights, or equities whatsoever of any third
party and, to the extent any of the Intellectual Property is licensed to RBF,
such interest is valid and uncontested by the licensor thereof or any third
party; (b) all computer software located at the Stations' facilities or used in
the Stations' business or operations is properly licensed to RBF, and all of
RBF's uses of such computer software are authorized under such licenses; (c) all
of RBF's right, title and interest in and to the Intellectual Property and
computer software (to the extent transferable without adversely affecting
Seller's rights thereto) shall be assignable to Buyer at Closing, and upon such
assignment, Buyer shall
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receive sufficient right, title, and interest in and to all tangible and
intangible property rights existing in the Intellectual Property; and (d) there
are no infringements or unlawful use of such Intellectual Property by RBF in
connection with RBF's business or operations.
7.13 Financial Statements. Schedule 7.13 lists the income statements of
RBF relating to the Stations which have been supplied to Buyer (collectively,
the "Financial Statements"). The Financial Statements were prepared in
accordance with the books and records of RBF and in accordance with generally
accepted accounting principles consistently applied and maintained throughout
the periods indicated except for the absence of footnotes and customary year-end
adjustments and as has been disclosed in Schedule 7.13. The Financial Statements
present fairly the results of operations of the Stations for the periods
indicated. None of the Financial Statements understates the true costs and
expenses of conducting the business and operations of the Stations, fails to
disclose any material liability, or inflates (or will inflate) the revenues of
the Stations for any reason.
7.14 Personnel Information.
7.14.1 Seller has provided to Buyer a complete list of all
persons employed at the Stations, including date of hire, a description of
material compensation arrangements (other than employee benefit plans set forth
in Schedule 7.17) and a list of other material terms of any and all agreements
affecting such persons and their employment by RBF. Seller has received no
notice that, and Seller is not aware of, any individual employee who shall or is
likely to terminate his or her employment relationship with the Stations upon
the execution of this Agreement or after the Closing.
7.14.2 Seller, with respect to the Stations, is not a party to
any contract or agreement with any labor organization, nor has Seller agreed to
recognize any union or other collective bargaining unit, nor has any union or
other collective bargaining unit been certified as representing any employees of
RBF at the Stations. Seller has no knowledge of any organization effort
currently being made or threatened by or on behalf of any labor union with
respect to employees of RBF at the Stations.
7.14.3 To the best of Seller's knowledge, except as disclosed
in Schedule 7.14, Seller, with respect to the Stations, has complied in all
material respects with all laws relating to the employment of labor, including,
without limitation, the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes.
7.15 Litigation. Seller is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree relating to the conduct of the
business or the operation of the Stations or any of the Stations Assets, and
there is no litigation, administrative action, arbitration, proceeding or
investigation pending or, to the best knowledge of Seller, threatened against
Seller with respect to, related to or in connection with the operation of the
Stations in any federal, state or local court, or before any administrative
agency or arbitrator (including, without limitation, any proceeding which seeks
the forfeiture of, or opposes the renewal of, any of the Stations
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Licenses), or before any other tribunal duly authorized to resolve disputes. In
particular, but without limiting the generality of the foregoing, to the best
knowledge of Seller, there are no applications, complaints or proceedings
pending or threatened before the FCC or any other governmental organization with
respect to the business or operations of the Stations.
7.16 Compliance With Laws. To the best of Seller's knowledge, (i)
Seller is not in material violation of, nor has Seller received any notice
asserting any non-compliance by it in connection with the operation of the
Stations or use or ownership of any of the Stations Assets with, any applicable
statute, rule or regulation, whether federal, state or local; (ii) Seller is not
in default with respect to any judgment, order, injunction or decree of any
court administrative agency or other governmental authority or any other
tribunal duly authorized to resolve disputes which relates to the transactions
contemplated hereby; and (iii) Seller is in material compliance with all laws,
regulations and governmental orders applicable to the conduct of the business
and operations of the Stations.
7.17 Employee Benefit Plans. Schedule 7.17 contains a true and complete
list as of the date of this Agreement of all employee benefit plans applicable
to the employees of RBF employed at the Stations, and a brief description
thereof. Seller does not maintain any other employee benefit plan as the term is
defined in Section 3 of the Employee Retirement Income Security Act of 1974, as
amended, applicable to the employees of RBF employed at the Stations.
7.18 Commissions or Finder's Fees. Neither Seller nor any person or
entity acting on behalf of Seller has agreed to pay a commission, finder's fee
or similar payment in connection with this Agreement or any matter related
hereto to any person or entity.
7.19 Conduct of Business in Ordinary Course: Adverse Changes. Since the
date Seller acquired the Stations, (a) Seller has conducted the business of the
Stations only in the ordinary course consistent with Seller's past practices;
(b) there has not been any material adverse change in the physical condition of
the tangible assets of the Stations, nor any damage, destruction, or loss
affecting any of the Stations Assets; and (c) Seller has not created, assumed,
or suffered any mortgage, pledge, lien or encumbrance on any of the Stations
Assets which will not be satisfied at Closing.
7.20 Instruments of Conveyance: Good Title. The instruments to be
executed by Seller and delivered to Buyer at the Closing, conveying the Stations
Assets to Buyer, will transfer good and marketable title to the Assets free and
clear of all liabilities (absolute or contingent), security interests,
mortgages, pledges, liens, obligations and encumbrances, except for Permitted
Encumbrances and except as set forth in Schedule 7.7 and Schedule 7.8 hereto and
those obligations referred to in the first sentence of Section 2.1 hereof.
7.21 Undisclosed Liabilities. Excepting only for the Assumed
Liabilities, no liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, relating to Seller, the Stations or the
Stations Assets exists which could, after discharging any indebtedness therefor
at or prior to the Closing, result in any form of transferee liability against
Buyer or subject the Stations Assets to any lien, encumbrance, claim, charge,
security interest or
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imposition whatsoever or otherwise affect the full, free and unencumbered use of
the Stations Assets by Buyer.
7.22 Termination of Prior Contract. On March 20, 2000, Seller sent
written notice to The Guyann Corporation of Seller's decision to terminate the
Asset Purchase Agreement between it and Seller, dated March 30, 1999, pursuant
to Section 16.1.6 thereof for reason that the Closing thereunder was not
consummated on or before September 15, 1999.
7.23 Full Disclosure. No representation or warranty made by Seller
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Seller's knowledge, there is no impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
Whenever in this Article 7 a warranty or representation is qualified by
a word or phrase referring to the best of Seller's knowledge (or similar terms),
it shall mean to the actual knowledge of Terry S. Jacobs, William L. Stakelin,
David Remund (Seller's engineer), and Jay Mlazgar (Seller's General Manager),
after having made due inquiry of the employees, representatives and agents of
Seller who would be expected to have knowledge of the matter, and with respect
to the condition of any Stations Assets, records or other object, after having
inspected it.
ARTICLE 8
COVENANTS OF BUYER
8.1 Closing. Subject to Article 11 hereof, on the Closing Date, Buyer
shall purchase the Stations Assets from Seller as provided in Article I hereof
and shall assume the Assumed Liabilities of Seller as provided in Article 2
hereof.
8.2 Notification. Buyer will provide Seller prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 6. Buyer shall also notify Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated hereby.
8.3 No Inconsistent Action. Buyer shall not take any action which is
materially inconsistent with its obligations under this Agreement or take any
action which would cause any representation or warranty of Buyer contained
herein to be or become false or invalid or which could hinder or delay receipt
of FCC Consent or the consummation of the transactions contemplated by this
Agreement.
8.4 Removal of Impediments. Should any fact relating to Buyer which
would cause the FCC to deny its consent to the transactions contemplated by this
Agreement come to Buyer's attention, Buyer will promptly notify Seller thereof
and will use its reasonable efforts to take such steps as may be necessary to
remove any such impediment to the FCC's consent to the
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transactions contemplated by this Agreement; provided, however, nothing in this
Section 8.4 shall require Buyer to dispose of or commit to dispose of any
existing ownership interest of Buyer in any other radio broadcast station.
ARTICLE 9
COVENANTS OF SELLER
9.1 Pre-Closing Covenants. Seller covenants and agrees with respect to
the Stations that, between the date hereof and the Closing Date or the earlier
termination of this Agreement in accordance with its terms, except as expressly
permitted by this Agreement or required by or provided otherwise by the Time
Brokerage Agreement, or with the prior written consent of Buyer, Seller shall
act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the
Stations in the ordinary and prudent course of business consistent with past
practice and with the intent of preserving the ongoing operations and assets of
the Stations, including but not limited to maintaining the independent identity
of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i)
preserve the operation of the Stations intact; (ii) preserve the business of the
Stations' advertisers, customers, suppliers and others having business relations
with the Stations; and (iii) continue to conduct financial operations of the
Stations, including without limitation, their credit and collection and pricing
policies and practices, all in the ordinary course of business consistent with
past practices, and, without limiting the generality of the foregoing, Seller
shall not discount its accounts receivable, accelerate its efforts to collect
accounts receivable or take any other action or use any other collection method
not regularly taken or used by it in the ordinary course of business prior to
the date of this Agreement.
9.1.3 Seller shall operate the Stations in all respects in
accordance with FCC rules and regulations and the Stations Licenses and with all
other laws, regulations, rules and orders, and shall not cause or permit by any
act, or failure to act, any of the Stations Licenses to expire, be surrendered,
adversely modified, or otherwise terminated, or the FCC to institute any
proceedings for the suspension, revocation or adverse modification of any of the
Stations Licenses, or fail to prosecute with due diligence any pending
applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the
FCC to deny its consent to the transactions contemplated by this Agreement come
to Seller's attention, Seller will promptly notify Buyer thereof and will use
its reasonable best efforts to take such steps as may be necessary to remove any
such impediment to the FCC's consent to the transactions contemplated by this
Agreement.
9.1.5 Except for changes or actions in the ordinary course of
business consistent with past practices, Seller shall not: (a) sell broadcast
time on a prepaid basis (other than in the course of existing credit practices);
(b) except as set forth on Schedule 7.14, or as required by applicable law or
written agreements currently in effect, grant or agree to grant any general
increases in the rates of salaries or compensation payable to employees of the
Stations (provided
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that no such increase to any employee shall exceed the amount budgeted therefor
in RBF's 2000 budgets) unless such increase is as a result of increased
commissions payable to employees on account of increased advertising sales; (c)
except as required by written agreements currently in effect, grant or agree to
grant any specific bonus or increase in compensation to any executive management
employee of the Stations (provided that no such increase to any employee shall
exceed the amount budgeted therefor in RBF's 2000 budgets) unless such bonus or
increase is as a result of increased commissions payable to employees on account
of increased advertising sales or is used as an incentive for employees to
remain with the Stations up to the Closing; (d) provide for any new pension,
retirement or other employment benefits for employees of the Stations or any
increases in any existing benefits, (e) modify, change or terminate any Contract
other than in the ordinary course of business; or (f) change the advertising
rates in effect as of the date hereof other than in the ordinary course of
business.
9.1.6 Seller shall give or cause the Stations to give Buyer
and Buyer's counsel, accountants, engineers and other representatives, at
Buyer's reasonable request and upon reasonable notice, full and reasonable
access during normal business hours to all of Seller's personnel, properties,
books, Contracts, reports and records (including, without limitation, financial
information and tax returns relating to the Stations, and environmental audits
in existence with respect to the Stations Assets), real estate, buildings and
equipment relating to the Stations and to the Stations' employees, and to
furnish Buyer with information and copies of all documents and agreements
relating to the Stations and the operation thereof (including but not limited to
financial and operating data and other information concerning the financial
condition, results of operations and business of the Stations, and any
engineering materials in Seller's possession regarding the operations of the
Stations and the ability, if any, of the Stations' signals to be upgraded) that
Buyer may reasonably request. The rights of Buyer under this Section 9.1.6 shall
not be exercised in such a manner as to interfere unreasonably with the business
of the Stations.
9.1.7 Without limiting Buyer's rights with respect to
Fundamental Contracts, Seller shall use its reasonable best efforts to obtain
any third party consents necessary for the assignment of any Contract (which
shall not require any payment to any such third party except for such amounts
contemplated by the Contract to be assigned, and any amount then owing by Seller
to such third party).
9.2 Notification. Seller will provide Buyer prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 7 or any Schedule. Seller agrees to notify Buyer of
any litigation, arbitration or administrative proceeding pending or, to the best
of its knowledge, threatened, which challenges the transactions contemplated
hereby. Subject to the terms of the Time Brokerage Agreement, Seller shall
promptly notify Buyer if any of the normal broadcast transmissions of any
Station are interrupted, interfered with or in any way impaired, and shall
provide Buyer with prompt written notice of the problem and the measures being
taken to correct such problem.
9.3 No Inconsistent Action. Seller shall not take any action which is
materially inconsistent with its obligations under this Agreement nor take any
action which would cause any representation or warranty of Seller contained
herein to be or become false or invalid
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or which could hinder or delay receipt of FCC Consent or the consummation of the
transactions contemplated by this Agreement.
9.4 Closing. Subject to Article 12 hereof, on the Closing Date, Seller
shall transfer, convey, assign and deliver to Buyer the Stations Assets and the
Assumed Liabilities as provided in Articles 1 and 2 and Section 7.20 of this
Agreement.
9.5 Other Items. Until the Closing Date or the earlier termination of
this Agreement in accordance with the terms hereof, except with Buyer's prior
written consent or pursuant to the terms of the Time Brokerage Agreement, Seller
shall not: (a) waive or release any right relating to the business or operations
of the Stations, except for adjustments or settlements made in the ordinary
course of business consistent with its past practices; (b) transfer or grant any
rights under any of the Stations Licenses; (c) enter into any commitment for
capital expenditures for which Buyer would become liable after the Closing Date;
(d) introduce any material changes in the broadcast hours or in the format of
the Stations or any other material change in the Station's programming policies;
(e) change the call letters of any of the Stations; and (f) enter into any
transaction or make or enter into any contract or commitment with respect to any
of the Stations or the Stations Assets which by reason of its size or otherwise
is not in the ordinary course of business consistent with past practices.
9.6 Exclusivity. Seller agrees that, commencing on the effective date
hereof, subject to limitations of applicable law and the effective termination
of an Asset Purchase Agreement between Seller and The Guyann Corporation, dated
March 30, 1999, through the Closing or earlier termination of this Agreement,
Buyer shall have the exclusive right to consummate the transactions contemplated
herein, and during such exclusive period, Seller agrees that neither Seller, nor
any director, officer, employee or other representative of Seller: (a) will
initiate, solicit or encourage, directly or indirectly, any inquiries, or the
making or implementation of any proposal or offer with respect to a merger,
acquisition, consolidation or similar transaction involving, or any purchase of,
all or any portion of the Stations Assets (any such inquiry, proposal or offer
being hereinafter referred to as an "Acquisition Proposal" and any such
transaction being hereinafter referred to as an "Acquisition"); (b) will engage
in any negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Acquisition
Proposal, or otherwise facilitate any effort or attempt to make or implement an
Acquisition Proposal; or (c) will continue any existing activities, discussions
or negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal or Acquisition and will take the necessary steps to inform
the individuals or entities referred to above of the obligations undertaken by
them in this Section 9.6. Notwithstanding the foregoing, in the event that Buyer
defaults in any material respect in the observance or in the due and timely
performance of any of its covenant or agreements herein contained and such
default shall not be cured within ten (10) business days of notice of default
served by Seller, Seller's obligations under this Section 9.6 shall be null and
void.
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ARTICLE 10
JOINT COVENANTS
Buyer and Seller each covenant and agree that between the date hereof
and the Closing Date, they shall act in accordance with the following:
10.1 Confidentiality. Subject to the requirements of applicable law,
Buyer and Seller shall each keep confidential all information obtained by it
with respect to the other parties hereto in connection with this Agreement and
the negotiations preceding this Agreement, and will use such information solely
in connection with the transactions contemplated by this Agreement, and if the
transactions contemplated hereby are not consummated for any reason, each shall
return to each other party hereto, without retaining a copy thereof, any
schedules, documents or other written information obtained from such other party
in connection with this Agreement and the transactions contemplated hereby.
Notwithstanding the foregoing, no party shall be required to keep confidential
or return any information which: (a) is known or available through other lawful
sources, not bound by a confidentiality agreement with the disclosing party; (b)
is or becomes publicly known through no fault of the receiving party or its
agents; (c) is required to be disclosed pursuant to an order, request or the
rules of a judicial or governmental authority (provided the disclosing party is
given reasonable prior notice of the order or request and the purpose of the
disclosure); or (d) is developed by the receiving party independently of the
disclosure by the disclosing party. Notwithstanding anything to the contrary
herein, either party may in accordance with its legal obligations, including but
not limited to filings permitted or required by the Securities Act of 1933 and
the Securities and Exchange Act of 1934, make such press releases and other
public statements and announcements as it deems necessary and appropriate in
connection with this Agreement and the transactions contemplated hereby;
provided, however, that prior to making any such unilateral press release or
announcement, such party shall first communicate the same in writing to the
other.
10.2 Cooperation. Subject to express limitations contained elsewhere
herein, including without limitation Sections 8.4 and 9.1.7 hereof, Buyer and
Seller agree to cooperate fully with one another in taking any reasonable
actions (including without limitation, reasonable actions to obtain the required
consent of any governmental instrumentality or any third party) necessary or
helpful to accomplish the transactions contemplated by this Agreement, including
but not limited to the satisfaction of any condition to closing set forth
herein; provided, that neither Buyer nor Seller shall be required to waive any
material right or consent to any materially adverse provision or condition to
obtain any such consent.
10.3 Control of Stations. Buyer shall not, directly or indirectly,
control, supervise or direct the operations of the Stations prior to the
Closing. Except as provided in the Time Brokerage Agreement, such operations,
including complete control and supervision of all Station programs, employees
and policies, shall be the sole responsibility of Seller.
10.4 Consents to Assignment. To the extent that any Contract identified
in the Schedules is not capable of being sold, assigned, transferred, delivered
or subleased without the waiver or consent of any third person (including a
government or governmental unit), or if such sale, assignment, transfer,
delivery or sublease or attempted sale, assignment, transfer, delivery
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or sublease would constitute a breach thereof or a violation of any law or
regulation, this Agreement and any assignment executed pursuant hereto shall not
constitute a sale, assignment, transfer, delivery or sublease or an attempted
sale, assignment, offer, delivery or sublease thereof. Subject to the provisions
of Section 11.5, in those cases where consents, assignments, releases and/or
waivers have not been obtained at or prior to the Closing relating to the
assignment to Buyer of the Contracts, this Agreement and any assignment executed
pursuant hereto, to the extent permitted by law, shall constitute an equitable
assignment by Seller to Buyer of all of Seller's rights, benefits, title and
interest in and to the Contracts, and where necessary or appropriate, Buyer
shall be deemed to be Seller's agent for the purpose of completing, fulfilling
and discharging all of Seller's rights and liabilities arising after the Closing
Date under such Contracts. Seller shall use its reasonable best efforts to
provide Buyer with the financial and business benefits of such Contracts
(including, without limitation, permitting Buyer to enforce any rights of Seller
arising under such Contracts), and Buyer shall, to the extent Buyer is provided
with the benefits of such Contracts, assume, perform and in due course pay and
discharge all debts, obligations and liabilities of Seller under such Contracts
to the extent that Buyer was to assume those obligations pursuant to the terms
hereof; provided, that the foregoing shall not affect or modify the parties'
obligations with respect to the Assumed Liabilities and Retained Liabilities as
provided in Article 2 hereof.
10.5 Filings. In addition to the covenants of the parties set forth in
Article 5 hereto, as promptly as practicable after the execution of this
Agreement, Buyer and Seller shall use their reasonable best efforts to obtain,
and to cooperate with each other in obtaining, all authorizations, consents,
orders and approvals of any governmental authority that may be or become
necessary in connection with the consummation of the transactions contemplated
by this Agreement, and to take all reasonable actions to avoid the entry of any
order or decree by any governmental authority prohibiting the consummation of
the transactions contemplated hereby, including without limitation, any reports
or notifications that may be required to be filed with the FCC, and each shall
furnish to one another all such information in its possession as may be
necessary for the completion of the reports or notifications to be filed by the
other.
10.6 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
provisions of the "bulk sales" or similar laws of any state. Seller agrees to
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorney's fees) sustained by
Buyer as a result of any failure of Seller to comply with any "bulk sales" or
similar laws.
10.7 Employee Matters. RBF shall be responsible for the payment of all
compensation and accrued employee benefits payable to all employees up to the
Commencement Date of the Time Brokerage Agreement. RBF acknowledges and agrees
that it, and not Buyer, is and shall be solely responsible for any and all
insurance, supplemental pension, deferred compensation, retirement and any other
benefits, and related costs, premiums and claims, due, to become due, committed
or otherwise promised to any person who, as of the Commencement Date of the Time
Brokerage Agreement, is a retiree, former employee, or current employee of RBF,
relating to the period up to the Commencement Date of the Time Brokerage
Agreement. Buyer, as a purchaser of the Stations Assets, shall assume no
employee benefit plans, programs or practices, whether or not set forth in
writing, maintained by Seller at any time. Between the date of this Agreement
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and the Commencement Date of the Time Brokerage Agreement, Seller shall use
reasonable efforts to retain those employees of the Station who Buyer has
notified in writing that it intends to hire. RBF, or any of its Affiliates, may
employ any person who rejects Buyer's offer of employment.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1 Representations, Warranties and Covenants.
11.1.1 All representations and warranties of Seller made in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes (a) expressly permitted or contemplated by the terms of this
Agreement or the Time Brokerage Agreement; (b) resulting from the errors, acts
or omissions of Buyer under the Time Brokerage Agreement, or (c) in the ordinary
course of business which are not, either individually or in the aggregate,
material and adverse.
11.1.2 All of the terms, covenants and conditions set forth in
this Agreement to be complied with and performed by Seller on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
11.1.3 Buyer shall have received a certificate, dated as of
the Closing Date, from Seller, executed by an officer of Seller to the effect
that: (a) the representations and warranties of Seller contained in this
Agreement are true and complete in all material respects on and as of the
Closing Date as if made on and as of that date, except for changes (i) expressly
permitted or contemplated by the terms of this Agreement or the Time Brokerage
Agreement; (ii) resulting from the errors, acts or omissions of Buyer under the
Time Brokerage Agreement, or (iii) in the ordinary course of business which are
not, either individually or in the aggregate, material and adverse; and (b)
Seller has complied with or performed in all material respects all terms,
covenants and conditions set forth in this Agreement to be complied with or
performed by it on or prior to the Closing Date.
11.2 Governmental Consents. The FCC Final Approval shall have been
obtained.
11.3 Governmental Authorizations. RLF shall be the holder of the
Stations Licenses and there shall not have been any modification of any of such
Licenses which has a material adverse effect on any of the Stations or the
operations thereof. No application shall be pending for the renewal of any of
the Stations Licenses. No proceeding shall be pending which seeks, or the effect
of which reasonably could be, to revoke, cancel, fail to renew, suspend or
adversely modify any of the Stations Licenses.
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11.4 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened in writing against, and no order,
decree or judgment of any court, agency or other governmental authority shall
have been rendered (and remain in effect) against, any party hereto which: (a)
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; (d) seeks material damages on account of
the consummation of any transaction contemplated hereby; or (e) is a petition of
bankruptcy by or against Seller, an assignment by Seller for the benefit of its
creditors, or other similar proceeding.
11.5 Third-Party Consents. All Fundamental Contracts shall be in full
force and effect on the Closing Date, and Seller shall have obtained and shall
have delivered to Buyer all appropriate third-party consents in form and
substance acceptable to Buyer (including estoppel certificates for the leases
related to the Leased Real Estate) in connection with the assignment of the
Fundamental Contracts to Buyer.
11.6 Closing Documents. Seller shall have delivered or caused to be
delivered to Buyer, on the Closing Date, all bills of sale, general warranty
deeds, endorsements, assignments and other instruments of conveyance reasonably
satisfactory in form and substance to Buyer, effecting the sale, transfer,
assignment and conveyance of the Stations Assets to Buyer, including, without
limitation, each of the documents required to be delivered by it pursuant to
Article 14.
11.7 No Adverse Change in Physical Condition of Tangible Assets. No
material adverse change in physical condition of any of the tangible assets
included in the Station Assets, which change is caused by or arises out of any
breach by Seller of any of its representations, warranties, covenants or
agreements hereunder shall have occurred or be reasonably likely to occur.
11.8 Phase One Environmental Audit. Buyer shall have received the Phase
I environmental site assessments received by Seller related to the Stations
during calendar year 1998 (copies of which are included in Schedule 7.11), which
assessments shall be recertified to Buyer in all material respects by the
environmental consultants who prepared the assessments, the cost for such
recertification to be paid by Buyer.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1 Representations, Warranties and Covenants.
12.1.1 All representations and warranties of Buyer made in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of
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that date, except for changes expressly permitted or contemplated by the terms
of this Agreement.
12.1.2 All the terms, covenants and conditions set forth in
this Agreement to be complied with and performed by Buyer on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
12.1.3 Seller shall have received a certificate, dated as of
the Closing Date, executed by an officer of Buyer, to the effect that: (a) the
representations and warranties of Buyer contained in this Agreement are true and
complete in all material respects on and as of the Closing Date as if made on
and as of that date; and (b) Buyer has complied with or performed in all
material respects all terms, covenants and conditions to be complied with or
performed by it on or prior to the Closing Date.
12.2 Governmental Consents. The FCC Initial Approval shall have been
obtained.
12.3 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened in writing against, and no other
decree or judgment of any court, agency or other governmental authority shall
have been rendered (and remain in effect) against, any party hereto which: (a)
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; or (d) seeks material damages on account of
the consummation of any transaction contemplated hereby.
12.4 Closing Documents. Buyer shall have delivered or caused to be
delivered to Seller, on the Closing Date, the Purchase Price and each of the
documents required to be delivered by it pursuant to Article 14.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
13.1 Expenses. Except as set forth in Section 13.2 hereof or otherwise
expressly set forth in this Agreement, each party hereto shall be solely
responsible for all costs and expenses incurred by it in connection with the
negotiation, preparation and performance of and compliance with the terms of
this Agreement including, but not limited to, the costs and expenses incurred
pursuant to Article 5 hereof and the fees and disbursements of counsel and other
advisors.
13.2 Specific Charges. All costs of transferring the Stations Assets in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be shall be paid by
Seller. Each party shall pay any filing or grant fees imposed upon it by any
governmental authority the consent of which or the filing with which is required
for the consummation of the transactions contemplated hereby, with the exception
of filing fees of the FCC which shall be shared equally by Buyer and Seller.
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ARTICLE 14
DOCUMENTS TO BE DELIVERED AT CLOSING
14.1 Seller's Documents. At the Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
14.1.1 Certified resolutions of the directors and sole
shareholder of Seller approving the execution and delivery of this Agreement and
authorizing the consummation of the transactions contemplated hereby;
14.1.2 A certificate of Seller, dated the Closing Date, in the
form described in Section 11.1.3;
14.1.3 Governmental certificates showing that (a) each of RBF
and RLF is duly organized, validly existing and in good standing in the State of
Delaware, (b) RBF is qualified to transact business and in good standing in the
State of Arizona; and (c) each of RBF and RLF has filed all returns, paid all
taxes due thereon and is currently subject to no assessment, each certified as
of a date not more than thirty (30) days before the Closing Date;
14.1.4 Such certificates, bills of sale, general warranty
deeds, assignments, documents of title and other instruments of conveyance,
assignment and transfer (including without limitation any necessary consents to
conveyance, assignment or transfer required to be delivered hereunder), and lien
releases, all in form satisfactory to Buyer and Buyer's counsel, as shall be
effective to vest in Buyer good and marketable title in and to the Stations
Assets, free, clear and unencumbered except for Permitted Encumbrances, if any,
as set forth on Schedule 7.7 and Schedule 7.8.
14.1.5 An Assignment and Assumption Agreement in the form of
Exhibit E effectuating the assignment and assumption of the Assumed Liabilities
(the "Assignment and Assumption Agreement");
14.1.6 The Indemnification Escrow Agreement;
14.1.7 At the time and place of Closing, originals and all
copies of all program, operations, transmission or maintenance logs and all
other records required to be maintained by the FCC with respect to the Stations,
including the public files of the Stations, shall be left at the Stations and
thereby delivered to Buyer;
14.1.8 A written opinion of Seller's corporate counsel in the
form attached as Exhibit F, dated as of the Closing Date;
14.1.9 A written opinion of Seller's FCC counsel confirming
the matters set forth in Exhibit G, dated as of the Closing Date; and
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14.1.10 Such additional information, materials, agreements,
documents and instruments as Buyer and its counsel may reasonably request in
order to consummate the Closing.
14.2 Buyer's Documents. At the Closing, Buyer shall deliver or cause to
be delivered to Seller the following:
14.2.1 Certified resolutions of the directors of Buyer
approving the execution and delivery of this Agreement and authorizing the
consummation of the transactions contemplated hereby;
14.2.2 A certificate of Buyer, dated the Closing Date, in the
form described in Section 12.1.3;
14.2.3 The Assignment and Assumption Agreement;
14.2.4 The Indemnification Escrow Agreement;
14.2.5 A written opinion of Buyer's counsel in the form
attached as Exhibit H, dated as of the Closing Date;
14.2.6 The Purchase Price in accordance with Section 3. 1
hereof; and
14.2.7 Such additional information, materials, agreement,
documents and instruments as Seller and its counsel may reasonably request in
order to consummate the Closing.
ARTICLE 15
SURVIVAL, INDEMNIFICATION. ETC.
15.1 Survival of Representations, Etc. It is the express intention and
agreement of the parties to this Agreement that all covenants and agreements
(together, "Agreements") and all representations and warranties (together,
"Warranties") made by Buyer and Seller in this Agreement shall survive the
Closing (regardless of any knowledge, investigation, audit or inspection at any
time made by or on behalf of Buyer or Seller) as follows:
15.1.1 The Agreements shall survive the Closing for a period
from the Closing Date equal to the statute of limitations for written contracts
in Arizona.
15.1.2 The Warranties in Sections 6.2, 6.5, 7.2, the third
sentence of 7.7, 7.18 and 7.20 shall survive the Closing without limitation.
15.1.3 The Warranties in Section 7.6 or otherwise relating to
the federal, state, local or foreign tax obligations of Seller shall survive the
Closing for the period of the applicable statute of limitations plus any
extensions or waivers granted or imposed with respect thereto.
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15.1.4 All other Warranties shall survive for a period of
twelve (12) months from the Closing Date.
15.1.5 The right of any party to recover Damages (as defined
in Section 15.2. 1) pursuant to Section 15.2 shall not be affected by the
expiration of any Warranties as set forth herein, provided that notice of the
existence of any Damages (but not necessarily the fixed amount of any such
Damages) has been given by the indemnified party to the indemnifying party prior
to such expiration.
15.1.6 Notwithstanding any provision hereof to the contrary,
there shall be no contractual time limit in which Buyer or Seller may bring any
action for actual fraud (a "Fraud Action"), regardless of whether such actual
fraud also included a breach of any Agreement or Warranty; provided, however,
that any Fraud Action must be brought within the period of the applicable
statute of limitations plus any extensions or waivers granted or imposed with
respect thereto.
15.2 Indemnification.
15.2.1 Seller shall defend, indemnify and hold harmless Buyer
from and against any and all losses, costs, damages, liabilities and expenses,
including reasonable attorneys' fees and expenses ("Damages") incurred by Buyer
arising out of or related to: (a) any breach of the Warranties given or made by
Seller in this Agreement; (b) any breach of the Agreements made by Seller in
this Agreement; (c) the Retained Liabilities; and (d) any failure of the parties
to comply with any "bulk sales" laws applicable to the transactions contemplated
hereby.
15.2.2 Buyer shall defend, indemnify and hold harmless Seller
from and against any and all Damages incurred by Seller arising out of or
related to: (a) any breach of the Warranties given or made by Buyer in this
Agreement; (b) any breach of the Agreements made by Buyer in this Agreement, (c)
the Assumed Liabilities, (d) the activities of Buyer under the Time Brokerage
Agreement, and (e) the operation of the Stations on and after the Closing Date.
15.3 Procedures: Third Party and Direct Indemnification Claims. The
indemnified party agrees to give written notice, within thirty (30) days
following its discovery thereof, to the indemnifying party of any demand, suit,
claim or assertion of liability by third parties or other circumstances that
could give rise to an indemnification obligation hereunder against the
indemnifying party (hereinafter collectively "Claims," and individually a
"Claim"), it being understood that the failure to give such notice shall not
affect the indemnified party's right to indemnification and the indemnifying
party's obligation to indemnify as set forth in this Agreement, unless the
indemnifying party's ability to contest, defend or settle with respect to such
Claim is thereby demonstrably and materially prejudiced. The parties also agree
that any claim for Damages arising directly between the parties relating to this
Agreement may be brought at any time within the applicable survival period
specified in Section 15. 1, and that the only notice required with respect
thereto shall be as specified in Section 15.1.5.
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The obligations and liabilities of the parties hereto with respect to
their respective indemnities pursuant to Section 15.2 resulting from any Claim
shall be subject to the following additional terms and conditions:
15.3.1 The indemnifying party shall have the right to
undertake, by counsel or other representatives of its own choosing, the defense
or opposition to such Claim.
15.3.2 In the event that the indemnifying party shall elect
not to undertake such defense or opposition, or within (10) days after notice of
any such Claim from the indemnified party shall fail to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, 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 of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
15.3.3 Anything in this Section 15.3 to the contrary
notwithstanding: (a) the indemnified party shall have the right, at its own cost
and expense, to participate in the defense, opposition, compromise or settlement
of the Claim; (b) the indemnifying party shall not, without the indemnified
party's written consent, settle or compromise any Claim 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 Claim, and (c) in the event that the indemnifying
party undertakes defense of or opposition to any Claim 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 Claim and the indemnifying
party and the indemnified party, and their respective counsel or other
representatives, shall cooperate in good faith with respect to such Claim.
15.3.4 No undertaking of defense or opposition to a Claim
shall be construed as an acknowledgment by such party that it is liable to the
party claiming indemnification with respect to the Claim at issue or other
similar Claims.
15.3.5 No indemnified party shall be entitled to assert a
claim for indemnification under Section 15.2.1(a) or Section 15.2.2(a) unless
and then only to the extent that the aggregate damages for all such claims
exceed $25,000, and the maximum liability of either party for indemnification
under such Subsections shall be $1,000,000, except with respect to claims
relating to title, taxes, License revocation, and environmental matters (which
shall not be so limited) or as otherwise set forth in Sections 16.2, 16.3 and
16.4 hereof.
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ARTICLE 16
TERMINATION RIGHTS
16.1 Termination. This Agreement may be terminated at any time prior to
Closing as follows:
16.1.1 Upon the mutual written consent of Buyer and Seller,
this Agreement may be terminated on such terms and conditions as so agreed; or
16.1.2 By written notice of Buyer to Seller if Seller breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Buyer; or
16.1.3 By written notice of Seller to Buyer if Buyer breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Seller; or
16.1.4 By written notice of Buyer to Seller or by Seller to
Buyer if the FCC denies the FCC Application under circumstances in which Seller
is not entitled to the Escrow Deposit;
16.1.5 By written notice of Buyer to Seller, or by Seller to
Buyer, if any court of competent jurisdiction shall have issued an order, decree
or ruling (which then remains in effect) or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, or by Buyer, if any court, legislative body or governmental or
regulatory authority has taken, or is reasonably expected to take, action that
would make the consummation of the transactions contemplated hereby inadvisable
or undesirable as determined by Buyer in its sole discretion reasonably
exercised;
16.1.6 By written notice of Buyer to Seller, or by Seller to
Buyer, if the Initial Approval has not been granted on or before March 30, 2001.
16.1.7 By written notice of Buyer to Seller if it shall become
apparent in both Seller's and Buyer's judgment reasonably exercised that any
condition to Buyer's obligation to close as set forth in Article 11 hereof will
not be satisfied on or before March 30, 2001.
16.1.8 By written notice of Buyer to Seller under the
conditions set forth in Section 9.2 hereof.
16.1.9 By written notice of Buyer to Seller, or by Seller to
Buyer, if the party giving such notice has terminated the Time Brokerage
Agreement.
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16.1.10 By written notice of Buyer to Seller within fourteen
(14) business days after the effective date of this Agreement as provided in
Section 17.10 hereof.
Notwithstanding the foregoing, no party hereto may effect a termination
hereof if such party is in material default or breach of this Agreement.
16.2 Liability. Except as set forth in Section 16.4 below, the
termination of this Agreement under Section 16.1 shall not relieve any party of
any liability for breach of this Agreement prior to the date of termination.
16.3 Monetary Damages, Specific Performance and Other Remedies. The
parties recognize that if Seller refuses to perform under the provisions of this
Agreement, monetary damages alone will not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled to obtain specific performance of
the terms of this Agreement in addition to any other remedies, including but not
limited to monetary damages, that may be available to it, if any action is
brought by Buyer to enforce this Agreement, Seller shall waive the defense that
there is an adequate remedy at law. In the event of a default by Seller, which
results in the filing of a lawsuit for damages, specific performance, or other
remedy, Buyer shall be entitled to reimbursement by Seller of reasonable legal
fees and expenses incurred by Buyer.
16.4 Seller's Liquidated Damages. As more fully described in the
Deposit Escrow Agreement, in the event this Agreement is terminated because of
Buyer's material breach of this Agreement, and all other conditions to Closing
are at such time satisfied or waived (other than such conditions as can
reasonably be satisfied by Closing), then the Escrow Deposit shall be delivered
to Seller, and the proceeds thereof shall constitute liquidated damages. It is
understood and agreed that such liquidated damages amount represents Buyer's and
Seller's reasonable estimate of actual damages and does not constitute a
penalty. Recovery of liquidated damages shall be the sole and exclusive remedy
of Seller against Buyer for failing to consummate this Agreement as a result of
Buyer's material breach hereof, and shall be applicable regardless of the actual
amount of damages sustained and all other remedies are deemed waived by Seller.
The provision for liquidated damages contained herein, however, shall not limit
the damages which Seller may be entitled to recover from Buyer for Buyer's
breach of the Time Brokerage Agreement.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Risk of Loss. The risk of loss or damage to any of the Stations
Assets prior to the Closing Date, shall be upon Seller. Seller shall repair,
replace and restore any such damaged or lost Stations Asset to its prior
condition as soon as possible and in no event later than forty-five (45) days
following the loss or damage; provided, however, that in the event any such loss
or damage of the Stations Assets exists on the Closing Date, then
notwithstanding any other provision hereto, Buyer at its option may extend the
Closing Date for a period of up to sixty (60) days until such time as Seller
shall have repaired, replaced and restored any such damaged or lost
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Stations Asset to its prior condition or deduct from the Purchase Price that
amount which Buyer and Seller reasonably determine to be sufficient to cover any
such loss or damage and close the transaction on the Closing Date.
17.2 Certain Interpretive Matters and Definitions. Unless the context
otherwise requires:
(a) all references to Sections, Articles, Schedules or
Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof, (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule l2b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as amended; and (g)
all references to '$' or dollar amounts will be to lawful currency of the United
States of America.
17.3 Further Assurances. After the Closing, Seller shall from time to
time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of conveyance and transfer and take such
other actions as may reasonably be requested in order more effectively to
consummate the transactions contemplated hereby to vest in Buyer good and
marketable title to the Stations Assets being transferred hereunder in
accordance with the terms hereof, and Buyer shall from time to time, at the
request of and without further cost or expense to Seller, execute and deliver
such other instruments and take such other actions as may reasonably be
requested in order more effectively to relieve Seller of any obligations being
assumed by Buyer hereunder.
17.4 Preservation of Records. Subject to Section 10. 1 hereof, Buyer
hereby agrees that it will preserve and make available to Seller and its
attorneys and accountants (including the right to inspect and copy at Seller's
cost), during normal business hours and upon reasonable advance notice, for
three (3) years after the Closing Date, such of the books, records, files,
correspondence, memoranda and other documents referred pursuant to this
Agreement as Seller may reasonably require for the preparation of tax reports
and returns, the preparation of financial statements, or the preparation of a
response to any claim by a third party against Seller.
17.5 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Neither Buyer nor Seller may voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent of
the other; provided, however, that no such permitted assignment shall relieve
Buyer of its obligations hereunder in the event that its assignee fails to
perform the obligations delegated. All covenants, agreements, statements,
representations, warranties and indemnities in this Agreement by and on behalf
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto. In the event
Buyer finds it necessary or is required to provide to a third party a collateral
assignment of the Buyer's interest in this Agreement and/or any related
documents, Seller shall cooperate with the Buyer and any third party requesting
such assignment including but not limited to signing a consent and
acknowledgment of such assignment.
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17.6 Amendments. No amendment, waiver of compliance with any provision
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
17.7 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.8 Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of Arizona, without giving effect to
the choice of law provisions thereof.
17.9 Notices. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, including by
facsimile, and shall be deemed to have been duly delivered and received on the
date of personal delivery, on the third day after deposit in the U.S. mail if
mailed by registered or certified mail, postage prepaid and return receipt
requested, on the day after delivery to a nationally recognized overnight
courier service if sent by an overnight delivery service for next morning
delivery or when dispatched by facsimile transmission (with the facsimile
transmission confirmation being deemed conclusive evidence of such dispatch) and
shall be addressed to the following addresses, or to such other address as any
party may request, in the case of Seller, by notifying Buyer, and in the case of
Buyer, by notifying Seller:
To Buyer: W. Grant Hafley
Yavapai Broadcasting Corporation
2405 East Highway 89A
Cottonwood, AZ 86326
Fax: (520) 634-2295 or (740) 432-5565
Copy to: IRWIN, CAMPBELL & TANNENWALD, P.C.
1730 Rhode Island Avenue, N.W., Suite 200
Washington, D.C. 20036
Attn: Alan C. Campbell, Esq.
Fax: (202) 728-0354
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To Seller: Terry S. Jacobs, Chairman
Regent Broadcasting of
Flagstaff, Inc.
50 East RiverCenter Blvd.
Suite 180
Covington, KY 41011
Fax: (606) 292-0352
Copy to: STRAUSS & TROY
The Federal Reserve Building
150 East Fourth Street
Cincinnati, OH 45202
Attn: Alan C. Rosser, Esq.
Fax: (513) 241-8259
17.10 Effectiveness. Buyer acknowledges that Seller has been a party to
an Asset Purchase Agreement, dated March 30, 1999, with The Guyann Corporation
("Guyann") under which Seller agreed to sell the Stations to Guyann, granted to
Guyann the exclusive right to purchase the Stations while such agreement was in
effect, and agreed not to initiate, solicit, encourage or negotiate any
proposals or offers for a sale of the Stations to any other party during such
period of exclusivity. Buyer confirms (a) that its offer to purchase the
Stations was presented to Seller at Buyer's own initiative, without solicitation
or encouragement from Seller, (b) that prior to March 21, 2000 the parties had
not engaged in any negotiations concerning Buyer's offer, that no confidential
information or data had been provided by Seller to Buyer, and that Seller had
taken no action to facilitate any effort or attempt by Buyer to make or
implement its proposal or offer to acquire the Stations, and (c) that Seller has
executed this Agreement in recognition of the fiduciary duties of its Board of
Directors. Because of the absence of information supplied by Seller to Buyer,
immediately upon the execution of this Agreement Buyer shall have the right to
conduct such investigation of the Stations as Buyer may desire pursuant to the
provisions of Section 9.1.6 hereof and to terminate this Agreement at its option
on the basis of its investigation within fourteen (14) business days after the
date of this Agreement without any liability or further obligation by either
party to the other party, except to return any confidential material. In the
event Buyer fails to give notice of termination to Seller within said 14-day
period, such right of termination shall lapse and be of no further force and
effect. In the event this Agreement, or Seller's activities in connection with
it, are determined by a court, arbitrator or by an opinion of independent legal
counsel selected by Seller to be in violation of the Guyann Agreement, then this
Agreement shall be null and void, and neither party shall have any rights or
obligations hereunder.
17.11 Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
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17.12 No Third Party Beneficiaries. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or entity other than the parties hereto and their successors or permitted
assigns any rights or remedies under or by reason of this Agreement.
17.13 Severability. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
17.14 Entire Agreement. This Agreement and the schedules and exhibits
hereto embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings relating
to the matters provided for herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
REGENT LICENSEE OF FLAGSTAFF, INC.
By: /s/ Terry S. Jacobs
----------------------------------
Name: Terry S. Jacobs
----------------------------------
Title: Chairman
----------------------------------
REGENT BROADCASTING OF FLAGSTAFF, INC.
By: /s/ Terry S. Jacobs
----------------------------------
Name: Terry S. Jacobs
----------------------------------
Title: Chairman
----------------------------------
YAVAPAI BROADCASTING CORPORATION
By: /s/ W. Grant Hafley
----------------------------------
Name: W. Grant Hafley
----------------------------------
Title: President
----------------------------------
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