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EXHIBIT 2(a)
ASSET PURCHASE AGREEMENT
BY AND AMONG
WJON BROADCASTING COMPANY,
REGENT BROADCASTING OF ST. CLOUD, INC.,
REGENT LICENSEE OF ST. CLOUD, INC.,
AND
REGENT COMMUNICATIONS, INC.
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TABLE OF CONTENTS
Page
ARTICLE 1 PURCHASE OF ASSETS 1
1.1 Transfer of Assets 1
1.2 Excluded Assets 3
1.3 Collection of Accounts Receivable 4
1.4 Real Estate Matters 5
ARTICLE 2 ASSUMPTION OF OBLIGATIONS 8
2.1 Assumption of Obligations 8
2.2 Retained Liabilities 8
ARTICLE 3 CONSIDERATION 9
3.1 Delivery of Consideration 9
3.2 Escrow Deposit 9
3.3 Proration of Income and Expenses 10
3.4 Allocation of Purchase Price 11
3.5 Adjustment for Barter 11
ARTICLE 4 CLOSING 11
4.1 Closing 11
ARTICLE 5 GOVERNMENTAL CONSENTS 12
5.1 FCC Consent 12
5.2 FCC Application 12
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BUYERS 13
6.1 Organization and Standing 13
6.2 Authorization and Binding Obligations 13
6.3 Qualification As Assignee 13
6.4 Absence of Conflicting Agreements or Required Consents 13
6.5 Commissions or Finder's Fees 13
6.6 Litigation 14
6.7 Full Disclosure 14
6.8 Financial Qualification 14
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF SELLER 14
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7.1 Organization and Standing 14
7.2 Authorization and Binding Obligation 14
7.3 Absence of Conflicting Agreements or Required Consents 15
7.4 Government Authorizations 15
7.5 Compliance with FCC Regulations 16
7.6 Taxes 17
7.7 Personal Property 17
7.8 Real Property 17
7.9 Contracts 19
7.10 Status of Contracts, etc. 19
7.11 Environmental 19
7.12 Intellectual Property 20
7.13 Financial Statements 20
7.14 Personnel Information 21
7.15 Litigation 21
7.16 Compliance With Laws 21
7.17 Employee Benefit Plans 22
7.18 Commissions or Finder's Fees 22
7.19 Conduct of Business in Ordinary Course; Adverse Change 22
7.20 Instruments of Conveyance; Good Title 22
7.21 Undisclosed Liabilities 22
7.22 Full Disclosure 22
ARTICLE 8 COVENANTS OF BUYERS 23
8.1 Closing 23
8.2 Notification 23
8.3 No Inconsistent Action 23
8.4 Employees 23
8.5 Senior Lender Consents 23
ARTICLE 9 COVENANTS OF SELLER 24
9.1 Pre-Closing Covenants 24
9.2 Notification 25
9.3 No Inconsistent Action 26
9.4 Closing 26
9.5 Other Items 26
9.6 Exclusivity 26
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ARTICLE 10 JOINT COVENANTS 27
10.1 Confidentiality 27
10.2 Cooperation 27
10.3 Control of Stations 27
10.4 Consents to Assignment 28
10.5 Filings 28
10.6 Employee Matters 28
10.7 Like-kind Exchanges 29
10.8 Transition Services Agreement 29
ARTICLE 11 CONDITIONS OF CLOSING BY BUYERS 29
11.1 Representations, Warranties and Covenants 29
11.2 Governmental Consents 29
11.3 Governmental Authorizations 30
11.4 Adverse Proceedings 30
11.5 Third-Party Consents 30
11.6 Closing Documents 30
11.7 Satisfactory Investigation of Station Facilities 30
11.8 Environmental Studies 31
11.9 No Adverse Change 31
11.10 Easement 31
11.11 Title Insurance 32
ARTICLE 12 CONDITIONS OF CLOSING BY SELLER 32
12.1 Representations, Warranties and Covenants 32
12.2 Governmental Consents 33
12.3 Adverse Proceedings 33
12.4 Third Party Consents 33
12.5 Matters Relating to Real Estate 33
12.6 Transition Services Agreement 33
12.7 Closing Documents 33
ARTICLE 13 TRANSFER TAXES; FEES AND EXPENSES 33
13.1 Expenses 33
13.2 Specific Charges 34
ARTICLE 14 DOCUMENTS TO BE DELIVERED AT CLOSING 34
14.1 Seller's Documents 34
14.2 Buyers' Documents 35
ARTICLE 15 SURVIVAL, INDEMNIFICATION, ETC. 36
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15.1 Survival of Representations, Etc 36
15.2 Indemnification 37
15.3 Procedures: Third Party and Direct Indemnification Claims 38
ARTICLE 16 TERMINATION RIGHTS 39
16.1 Termination 39
16.2 Liability 41
16.3 Monetary Damages, Specific Performance and Other Remedies 41
16.4 Seller's Liquidated Damages 41
ARTICLE 17 MISCELLANEOUS PROVISIONS 41
17.1 Risk of Loss 41
17.2 Certain Interpretive Matters and Definitions 42
17.3 Further Assurances 42
17.4 Preservation of Records 43
17.5 Benefit and Assignment 43
17.6 Amendments 43
17.7 Headings 43
17.8 Governing Law 44
17.9 Notices 44
17.10 Counterparts 45
17.11 No Third Party Beneficiaries 45
17.12 Severability 45
17.13 Entire Agreement 45
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LIST OF SCHEDULES AND EXHIBITS
Schedule 1.2 Miscellaneous Excluded Assets
3.4 Allocation of Purchase Price
6.4 Third Party Consents
7.4 Stations Licenses, Etc.
7.7 Tangible Personal Property
7.8 Real Property
7.9 Contracts (including identification of Material
Contracts)
7.11 Environmental Matters
7.12 Intellectual Property
7.13 Financial Statements
7.14 Personnel Information
7.15 Litigation
7.16 Compliance With Laws
7.17 Employee Benefit Plans
Exhibit A Indemnification Escrow Agreement
B Deposit Escrow Agreement
C Assignment and Assumption Agreement
D Non-Completion Agreement
E Lease Agreement
F FCC Counsel Opinion
G Buyers' Counsel Opinion
H Seller's Counsel Opinion
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
this 5th day of January, 1999 by and between WJON BROADCASTING COMPANY, a
Minnesota limited partnership (hereinafter referred to as "Seller"), REGENT
BROADCASTING OF ST. CLOUD, INC., a Delaware corporation ("RBI"), REGENT LICENSEE
OF ST. CLOUD, INC., a Delaware corporation ("RLI") (RBI and RLI collectively
referred to as "Buyers"), and REGENT COMMUNICATIONS, INC., a Delaware
corporation ("Regent").
RECITALS
WHEREAS, Seller owns and operates radio stations WJON-AM and WWJO-FM
licensed to St. Cloud, Minnesota, and KMXK-FM, licensed to Cold Spring,
Minnesota (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 Buyers desire 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 1
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 Buyers, Buyers shall
purchase for the Purchase Price determined pursuant to Section 3.1, and RBI
shall 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 (but specifically excluding the assets identified
as Excluded Assets in Section 1.2 hereof):
1.1.1 all transferable 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") as the same are 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
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modifications of such items, and all applications pertaining thereto, between
the date hereof and the Closing Date;
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 $10,000 in the aggregate unless Seller has
obtained the prior written approval of RBI which shall not be unreasonably
withheld, delayed or conditioned;
1.1.3 all transferable contracts, agreements, leases and
legally binding contractual rights of any kind, written or oral, existing on the
date hereof and relating to the operation of the Stations including, but not
limited to, those which are listed in Schedule 7.8 and Schedule 7.9, together
with (a) all advertising contracts relating to the operation of the Stations
which are entered into or acquired by Seller in the ordinary course of business
and which are consistent with past practices of Seller; and (b) any other
contracts, agreements, leases and legal binding contractual rights relating to
the operation of the Stations which are entered into or acquired by Seller in
the ordinary course of business between the date hereof and the Closing Date
(collectively the "Contracts"); provided, however, Buyers shall be entitled to a
credit against the Purchase Price for the amount, if any, by which the aggregate
net value of the Stations' Barter Payable as of the Closing Date exceeds the
aggregate net value of the Stations' Barter Receivable as of the Closing Date by
more than $15,000.
1.1.4 all of Seller's transferable rights in and to the call
letters WJON, WWJO, and KMXK, and any variation thereof, as well as all of
Seller's transferable 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, jingles, slogans, the Stations' logos and
all other logos or licenses to use same and all other intangible property rights
of Seller, to the extent transferable, 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 transferable 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;
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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, lists of
advertisers, promotional materials, credit and sales reports and filings with
the FCC and all written Contracts to be assigned hereunder, logs, transferable
software programs and books and records (copies where originals have been
retained by Seller) 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,
to the extent assignable;
1.1.8 the real property and fixtures thereon described in
Section 7.8 (exclusive of the Excluded Real Estate, subject to the provisions of
Section 1.4 hereof); and
1.1.9 except for Excluded Assets, such other assets,
properties, interests and rights owned by Seller that are used or useful in
connection with the operation of the Stations to the extent assignable in the
case of intangible assets and to the extent of Seller's leasehold interest with
respect to leased property.
The Stations Assets shall be transferred to RBI (except for the
Stations' Licenses which shall be transferred to RLI) free and clear of all
debts, security interests, mortgages, trusts, claims, pledges or other liens,
liabilities (other than Assumed Liabilities), encumbrances or rights of third
parties whatsoever ("Encumbrances"), except for Permitted Encumbrances, if any,
as provided for in Section 7.8.2 and except as set forth in Schedule 7.7. and
Schedule 7.8. Notwithstanding the foregoing, RBI may, by providing written
notice to Seller not less than five (5) days prior to the Closing, decide, in
the exercise of its sole discretion, not to purchase any one or more of such
Stations Assets which is not a Contract (and, in such event, not to assume any
liability secured by, arising from the acquisition of, or otherwise relating to
any such Asset); provided, that in no event shall such decision reduce the
Purchase Price.
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 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, accounts receivable (not to
include Barter Receivables which shall be Stations Assets) or notes receivable
for services performed by Seller
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prior to the Closing Date, and other claims of Seller to the payment of money
relating to the operation of the Stations by the Seller prior to the Closing;
1.2.3 all real property owned by Seller and described on
Schedule 7.8 as Excluded Real Estate (subject to the provisions of Section 1.4
hereof) by reason of not being used by Seller in connection with the operation
of the Stations and all tangible and intangible personal property of Seller not
located at the Stations' facilities identified on Schedule 7.8, and not used by
Seller in connection with the operation of the Stations or used by Seller in all
material respects solely in connection with the operation of radio station
KKJM-FM (those material items of excluded tangible and intangible personal
property being listed on Schedule 1.2);
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 (i) minute books and records, ownership record
books and such other books and records as pertain to the organization, existence
or capitalization of Seller; (ii) originals of all personnel and other records
which Seller is required by law to retain in its possession, including those as
are required by Seller to file its tax returns and reports; and (iii) such 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 other right, property or asset described in Schedule
1.2.
1.3 Collection of Accounts Receivable. Following the Closing, RBI shall
act as Seller's agent for the sole purpose of collecting the accounts receivable
due and owing to the Seller as of the Closing Date, which accounts receivable
are identified as Excluded Assets pursuant to Section 1.2.2 ("Seller's Accounts
Receivable"). RBI shall use its customary methods for collecting its own
accounts receivable in collecting Seller's Accounts Receivable, but RBI shall
not be obligated to initiate legal action for such purpose. All payments
received by RBI during the four (4) month period following the Closing Date, net
of commissions payable to
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RBI's employees who were formerly employees of Seller (provided such amount is
actually paid by RBI to said former employees in satisfaction of Seller's
obligation thereto), shall be applied, on an account debtor by account debtor
basis, first to Seller's Accounts Receivable and, only after full satisfaction
thereof, to RBI's account; provided, however, that if during the four-month
collection period any account debtor contests the validity of its obligation
with respect to any of Seller's Accounts Receivable or specifies in writing
(exclusive of any standard language in any RBI statement or invoice which
specifies the application of payment) that the payment is to be applied to its
account with RBI, RBI may apply the payment from such account debtor to its
existing account. RBI shall remit, on a monthly basis, all cash collections of
Seller's Accounts Receivable, net of commissions payable thereon to any of
Seller's former employees who are employees of RBI (provided such amount is
actually paid by RBI to said former employee), within ten (10) days following
the expiration of each calendar month and of the four-month collection period,
accompanied by a report in form and substance sufficient to enable the Seller to
identify the current collection status of Seller's Accounts Receivable. All
commissions payable on Seller's Accounts Receivable collected by RBI shall be
the obligation of Seller except to the extent such commissions are set off by
Buyers as provided for in this Section 1.3.
During the four-month collection period, the Seller will refrain from
taking any action in an attempt to collect any of the Seller's Accounts
Receivable without obtaining the prior written consent of RBI, except that the
Seller shall be entitled to pursue the collection of any amount claimed due by
Seller from an account debtor who disputes the balance or validity of its
obligation to make payment to the Seller or who otherwise directs that payment
be applied first to RBI's account in lieu of Seller's account without RBI's
written consent by use of any commercially-acceptable collection methods,
including submitting uncollected Seller's Accounts Receivable for collection, as
the Seller may deem appropriate in its sole discretion. RBI shall not have the
right to compromise, settle or adjust the amount of any of Seller's Accounts
Receivable without Seller's prior written consent. Upon expiration of the
four-month collection period, RBI shall have no further obligation to collect
any of Seller's Accounts Receivable, provided, however, that all funds
subsequently received by RBI (without time limitation) that can be specifically
identified as belonging to the Seller (including payments relating to any
Excluded Asset), whether by accompanying invoice, remittance advice or
otherwise, shall be promptly paid over or forwarded to the Seller. RBI shall
allow Seller and its representatives to review such books, records and documents
as may be reasonably necessary or helpful to establish and verify the accuracy
and status of RBI's collection of Seller's Accounts Receivable.
1.4 Real Estate Matters. The Real Estate that is included in the
Stations Assets includes the KMXK tower site, the WWJO tower site and a portion
of the WJON site known as the "Headquarters Property" on which the broadcasting
offices and studio of the Stations and WJON-AM tower and ground systems are
located (said parcels are collectively referred to herein as the "Included Real
Estate"). The excluded portion of the Headquarters Property is identified on
Schedule 7.8 as the Excluded Real Estate. The Included Real Estate and the
Excluded Real Estate constitute the Owned Real Estate. Seller shall have a
surveyor ("Surveyor") prepare legal descriptions for the Excluded Real Estate at
Seller's sole cost and expense, which legal descriptions shall conform, in all
material respects, with the sketch of the Excluded Real Estate
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identified as parcels 1, 2, 5, and 6 identified on Schedule 7.8 (the "Excluded
Real Estate Legal Descriptions"). The parties shall execute an agreement at
Closing accepting the Excluded Real Estate Legal Descriptions as prepared by the
Surveyor describing the Excluded Real Estate. For the purpose of consummating
the transactions contemplated by this Agreement, Seller will convey all of the
Owned Real Estate to RBI, subject to Seller's reservation of rights in, and
RBI's obligations with respect to the Excluded Real Estate, as the same are more
fully described in this Section 1.4. RBI, upon the written request of Seller
("Demand to Re-convey"), will re-convey the Excluded Real Estate (or selected
parcels thereof which may be designated by Seller from time to time in a Demand
to Re-convey), to Seller. Seller may waive in writing the obligation of RBI to
re-convey one or more of the parcels of Excluded Real Estate, in its sole
discretion, at any time, provided, however, that RBI shall retain ownership of
any parcel(s) of Excluded Real Estate which are not subject to a Demand to
Re-convey submitted by the Seller on or prior to the Re-conveyance Deadline.
The parties acknowledge that there are certain title problems affecting
the Headquarters Property that need to be remedied by Seller by a quiet title
action through a judicial proceeding ("Quiet Title Proceeding"). These title
problems include (i) a guy wire anchor in the southeast corner of the Included
Real Estate is presently located in an ingress and egress easement; (ii) the
existence of an appurtenant easement for a guy wire is required as contemplated
by Section 11.10 of the Purchase Agreement; (iii) the existence of possible
legal description inaccuracies; and (iv) such other title objections made by the
Buyers in accordance with the provisions of Section 11.11 which are not
Permitted Real Property Encumbrances as described therein. Buyers agree to
reasonably cooperate with Seller to quiet the title to such real estate. The
cooperation shall include, but not be limited to (i) the joining by RBI in an
action by Seller in any Court of competent jurisdiction to quiet the title to
the Headquarters Property, (ii) the joining by RBI in any plats or subdivisions
of the Headquarters Property necessary to more accurately describe the
Headquarters Property and the Excluded Real Estate, and (iii) complying with all
reasonable requirements imposed by any applicable governmental authority in the
subdivision of the Owned Real Estate to show and describe the Excluded Real
Estate as described in this Section 1.4. Notwithstanding anything to the
contrary, Buyers' cooperation shall in no way limit, infringe upon, disrupt or
otherwise affect their operation of the Headquarters Property as a broadcasting
station. Seller acknowledges that Buyers' senior lenders must (i) provide their
prior written consent to the Quiet Title Proceeding and (ii) agree in writing to
release the Excluded Real Estate from the lien of their mortgage upon
re-conveyance of Excluded Real Estate to Seller without any consideration
(collectively the "Senior Lender Consents"). Buyers shall exercise commercially
reasonable efforts in obtaining the Senior Lender Consents prior to the Closing
in such form as may be reasonably acceptable to counsel for the Seller. Seller
hereby agrees to indemnify and hold Buyers and Buyers' lenders harmless from any
and all costs, expenses, liabilities, loss or damage (including reasonable
attorney's fees and disbursements) as a result of the Quiet Title Proceeding.
RBI's re-conveyance of the Excluded Real Estate to Seller shall be by a
limited warranty deed. RBI will also cause the necessary partial releases for
any Encumbrances created or suffered to exist by or as a result of RBI's
ownership of the Excluded Real Property at the time
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of any re-conveyance ("RBI Encumbrances"). RBI shall indemnify and hold the
Seller harmless from any and all costs, expenses, liabilities, loss or damage
(including reasonable attorney's fees and disbursements) incurred by the Seller
in enforcing its rights of re-conveyance set forth herein or in obtaining the
release or discharge of the RBI Encumbrances. All costs associated with said
re-conveyance (exclusive of the RBI Encumbrances and RBI's indemnity obligation
related thereto) shall be borne by Seller. RBI shall not encumber the
Headquarters Property or the Excluded Real Estate except for liens to secure
financing used to acquire the Headquarters Property from the Seller in
accordance with the provisions of this Agreement.
It is anticipated that the Quiet Title Proceeding, platting of the
Headquarters Property and re-conveyance of the Excluded Real Estate shall be
completed by March 1, 2000; provided, however, Seller shall have until thirty
(30) days after the later of (i) the Quiet Title Proceeding has been finally
determined; or (ii) the approval of the last governmental authority to the
platting of the Headquarters Property and the Excluded Real Estate to request
the conveyance from RBI of the Excluded Real Estate ("Re-conveyance Deadline").
Upon re-conveyance of the Excluded Real Estate to Seller by RBI, Seller
shall reimburse RBI for all real estate taxes paid by RBI on the Excluded Real
Estate re-conveyed to Seller. The amount of the real estate taxes on the
Excluded Real Estate re-conveyed shall be mutually agreed upon at the time of
re-conveyance, provided, however, if RBI and Seller cannot mutually agree upon
the amount of the real estate taxes, the local assessor or appropriate
governmental department of the City of St. Cloud shall allocate the amount of
the real estate taxes for the Excluded Real Estate being re-conveyed to Seller
by RBI and their allocation shall be final and binding upon the Seller and RBI.
It is the intent of the provisions of this Section 1.4 that upon
resolution of the Quiet Title Proceeding, the platting of the Headquarters
Property and the re-conveyance to Seller of such Excluded Real Estate as Seller
shall request, the parties shall be placed in such economic position with
respect to such Excluded Real Estate and the balance of the Owned Real Estate as
they would be had such Excluded Real Property re-conveyed to Seller never been
conveyed to RBI.
In the event the Quiet Title Proceeding is unsuccessful in remedying,
in all material respects, title problems that affect the Headquarters Property,
Seller, diligently and in good faith, shall take such steps to eliminate
reasonably foreseeable potential adverse effects of such unresolved title
problems that could reasonably interfere in any material respect with the
existing use of the Headquarters Property, without cost to Buyers. In the event
less expensive remedies have been exhausted, resolution may include, without
limitation, a replacement of the WJON-AM tower with a tower of equivalent height
with a reconfigured guy wire system. All such remedial steps shall be completed
with reasonable promptness in a manner reasonably acceptable to Buyers and their
engineer in accordance with good engineering practice and without adversely
affecting to any noticeable degree the quality of the broadcast signals
transmitted by or to the Station (WJON-AM) over its area of population coverage,
the objective being to place Buyers in a position equivalent to the position
they would have been in upon Closing of this transaction had such material title
problems not existed. Because of stability
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concerns, a shortening or relocation of the existing guy wires to the existing
tower will not be a suitable remedial solution. In the event the Quiet Title
Proceeding is unsuccessful in remedying the title problems and alternative
corrective measures do not exist, then as a remedy of last resort Buyers shall
be entitled to compensation in the form of an equitable reduction of the
Purchase Price, and a refund of the excess paid with interest at Regent's bank
borrowing rate in effect from time to time since the Closing Date, to reflect
the diminution in value to Buyers of the transaction, taking into account the
unanticipated problems existing by virtue of the title problems. In the event
the parties are unable to agree upon the amount of the equitable reduction, the
matter shall be submitted to arbitration in Chicago, Illinois in accordance with
the commercial rules of the American Arbitration Association then in effect, and
the decision shall be binding and enforceable upon the parties. In the event the
title problems have not been remedied or alternative corrective measures
completed by the time the escrow funds being held under the Indemnification
Escrow Agreement are to be released to Seller, then $150,000 of such funds shall
continue to be held in escrow under said agreement until such title problems
have been remedied, the alternative corrective measures completed, or Buyers
have been compensated according to the terms hereof. The Seller and RBI shall
enter into a memorandum or short form of this provision which shall be in
recordable form ("Memorandum of Re-conveyance").
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, RBI 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, prior to
the Closing Date) under: (a) the Contracts (including Barter Payables); (b) all
property taxes and other governmental charges on the Stations Assets; and (c)
all federal, state, county, municipal, and foreign sales tax liabilities,
including any penalties and interest thereon, relating to the operation of the
Stations. All of the foregoing liabilities and obligations shall be referred to
herein collectively as the "Assumed Liabilities. "
2.2 Retained Liabilities. Except as specifically set forth in Section
2.1 above for Assumed Liabilities, Buyers expressly do 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. 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, pension or retirement plans or trusts, profit-sharing
plans,
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employment contracts, employee benefits, severance of employees, product
liability or warranty, negligence, contract breach or default, or other
obligations, claims or judgments asserted against Buyers 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."
ARTICLE 3
CONSIDERATION
3.1 Delivery of Consideration. In consideration for the sale of the
Stations Assets to Buyers, Buyers shall, at the Closing (as hereinafter
defined), pay to Seller prior to 11:00 a.m., Central Time, on the Closing Date
in cash by wire transfer to an account or accounts designated by Seller the
amount of Twelve Million Seven Hundred Thousand and no/100 Dollars
($12,700,000.00), subject to the provisions of Section 1.1.3 above and Sections
3.2, 3.3, and 11.9 below (the "Purchase Price"). Notwithstanding the foregoing,
the parties agree that at the Closing, Buyers, Seller and National City Bank, 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 Seven Hundred Fifty Thousand Dollars
($750,000), which funds shall be held in escrow for a period of at least one
year from the Closing Date and until the earlier of (a) the date which is thirty
(30) days after Buyers' receipt from their auditors of audited financial
statements for the Stations for the 12-month period ended December 31, 1999 or
(b) June 30, 2000, except as otherwise provided in Section 1.4. Such funds shall
be used to satisfy indemnification claims of Buyers pursuant to Sections 15.2.1
and 15.3 hereof, and otherwise be administered and released as specifically
provided for in the Indemnification Escrow Agreement.
3.2 Escrow Deposit.
(a) Concurrently with the execution and delivery of this
Agreement, Buyers, Seller and National City Bank, as
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 Buyers shall deposit within two (2)
business days thereafter the amount described below
as a deposit on the amount of the Purchase Price.
Such amount 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, Buyers shall wire transfer Five Hundred
Thousand Dollars ($500,000), or alternatively,
deliver an irrevocable, stand-by letter of credit for
such amount in form and substance acceptable to
Seller, to an escrow account established pursuant to
the Deposit Escrow Agreement (the "Escrow Deposit").
At the Closing, the Escrow Deposit if, in the form of
cash, shall be applied to the Purchase Price to be
paid to Seller and the interest accrued thereon
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shall be paid to Buyers, or if in the form of a
letter of credit, shall be returned to Buyers. In the
event (i) this Agreement is terminated pursuant to
Section 16.1.3 because of Buyers' material breach of
this Agreement which was not cured within any
applicable cure period and all other conditions to
Closing are at such time satisfied or waived (other
than such conditions (1) as could not be satisfied
because of Buyers' material breach of this Agreement
or (2) except for those conditions referred to in
(1), as can reasonably be expected to be satisfied by
the Closing), the Escrow Deposit shall be paid to or
delivered for draw thereon to Seller as liquidated
damages as provided in Section 16.4 hereto for
Buyers' material breach of this Agreement (the
payment of such sum to Seller shall discharge any
liability Buyers may have to Seller), and the
interest accrued on the Escrow Deposit shall be paid
to Buyers; and (ii) this Agreement is terminated
under any circumstances other than those set forth in
the immediately preceding clause (i), the Escrow
Deposit and the interest accrued thereon shall be
paid or returned to Buyers; provided, however, the
rights and remedies which either party has pursuant
to any confidentiality agreement, whether set forth
herein or in a separate agreement shall not be merged
with this provision and shall survive termination of
this Agreement.
3.3 Proration of Income and Expenses.
3.3.1 Except as otherwise provided herein, all revenues,
expenses and all deposits, reserves and prepaid and deferred income and expenses
relating to the Stations Assets or the Assumed Liabilities and arising from the
conduct of the business and operations of the Stations shall be prorated between
RBI and Seller in accordance with generally accepted accounting principles as of
11:59 p.m. Central time, on the date immediately preceding the Closing Date
(such that Seller shall be responsible for amounts allocable to the period prior
to the Closing Date and RBI shall be responsible for amounts allocable to the
period on or after 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, frequency discounts,
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 and sick leave, 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 estimate shall be made as of the
Closing Date with the actual amount of the adjustment and proration to be made
within sixty (60) calendar days after the Closing Date.
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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 with no prior relationship to the
parties or their Affiliates which is mutually acceptable to the parties, and the
fees and expenses of such accountant shall be paid one-half by Seller and
one-half by Buyers. The determination of such accountant shall be binding on the
parties hereto.
3.4 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Stations Assets in accordance with the allocation set forth on
Schedule 3.4. Seller and Buyer hereby agree to use the allocation set forth on
Schedule 3.4 for all tax purposes, including, without limitation, those matters
subject to Section 1060 of the Internal Revenue Code of 1986, as amended.
3.5 Adjustment for Barter. As of the Closing Date, Buyers shall be
entitled to a credit against the Purchase Price for the amount, if any, by which
the aggregate net value of the Stations' Barter Payable (as defined below) as of
the Closing Date exceeds the aggregate net value of the Stations' Barter
Receivable (as defined below) as of the Closing Date by more than $15,000 with
respect to Contracts for the sale of advertising in exchange, in whole or in
part, for merchandise or services ("Trade Agreements"). For purposes of this
Agreement, any Contract which provides for the payment of fees for programming
services through advertising barter (i.e., barter programming) shall be excluded
from the definition of Trade Agreements.
"Barter Payable" means the aggregate value of time owed pursuant to
each of the Trade Agreements. "Barter Receivable" means the aggregate value of
goods and services to be received pursuant to each of the Trade Agreements.
Notwithstanding the foregoing, the net Barter Payable, if any, relating solely
to the Value Connection shall be calculated by multiplying the net Barter
Payable for the Value Connection by a fraction, the numerator of which is
seventy (70) and the denominator of which is eighty-five (85). The resultant
shall be the net Barter Payable attributable to the Value Connection, which
amount shall be aggregated with the net Barter Payable or Receivable from all
other Trade Agreements to arrive at the net Barter Payable or Barter Receivable.
ARTICLE 4
CLOSING
4.1 Closing. Except as otherwise mutually agreed upon by Buyers and
Seller, the consummation of the transactions contemplated herein (the "Closing")
shall occur within five (5) 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 commercially reasonable efforts
to cause each condition to closing to be satisfied so that the Closing may occur
at the earliest possible date), (b) the issuance of the Final Order (as defined
below) or (c) January 1, 1999; or such other date as may be mutually agreed upon
by the parties hereto (the "Closing Date"); provided,
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however, that Buyers and Seller may waive the requirement that a Final Order be
issued and elect (subject to clause (a) and (c) above, to close at any time (not
less than five (5) business days following such agreement) after the release of
the initial FCC approval on public notice that the FCC 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 Buyers or any Affiliate (as hereinafter
defined) of Buyers with respect to the assignment of the FCC Licenses to RLI or
the continued operation by Buyers of the Stations or the Stations Assets in the
manner presently operated by Seller. In the event the parties close before the
Initial Approval has become a Final Order, the parties shall enter into a
mutually acceptable unwind agreement. The Closing shall be held in the offices
of Moss & Barnett, Minneapolis, Minnesota, or at such place and in such manner
as the parties hereto may agree. The Closing shall be effective as of the
beginning of business on the Closing Date.
ARTICLE 5
GOVERNMENTAL CONSENTS
5.1 FCC Consent. It is specifically understood and agreed by Buyers 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 materially adverse to Buyers or Regent, on the one hand, or the
Seller, on the other hand (the "FCC Consent").
5.2 FCC Application. Within five (5) business days after the execution
of this Agreement, Buyers and Seller shall file an application with the FCC for
the FCC Consent (the "FCC Application"). Buyers and Seller shall prosecute the
FCC Application with all reasonable diligence and otherwise use their
commercially reasonable efforts to obtain the FCC Consent as expeditiously as
practicable (but neither Buyers nor Seller shall have any obligation to satisfy
complainants or the FCC by taking any steps which would have a material adverse
effect upon Buyers or Seller or upon any of their respective Affiliates). If the
FCC Consent imposes any condition on Buyers or Seller or any of their respective
Affiliates, such party shall use its commercially reasonable efforts to comply
with such condition; provided, however, that neither Buyers nor Seller 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.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYERS (AND REGENT)
Buyers (and Regent where stated) hereby make the following
representations and warranties to Seller, each of which is true and correct on
the date hereof, shall survive the Closing for the periods provided for in
Section 15.1 and, subject to the provisions of Section 15.3.5, shall be
unaffected by any investigation heretofore or hereafter made by Seller:
6.1 Organization and Standing. Buyers and Regent are corporations duly
organized validly existing and in good standing under the laws of the State of
Delaware, and by the Closing Date Buyers will be duly qualified to conduct
business within the State of Minnesota.
6.2 Authorization and Binding Obligations. Buyers have all necessary
corporate 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. Buyers' and Regent's execution, delivery and
performance of this Agreement and the transactions contemplated hereby have been
duly and validly authorized by all necessary action on their 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 Buyers and
Regent, enforceable against them 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 Buyers' 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 RLI as an assignee
of the Stations Licenses.
6.4 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 hereof with respect to governmental consents or on
Schedule 6.4, the execution, delivery and performance of this Agreement by
Buyers and Regent: (a) will not conflict with, result in a breach of, or
constitute a violation of, or a default under, the provisions of the articles of
incorporation or by-laws (or other charter or organizational documents) of
Buyers or Regent; (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 either Buyer or
Regent or any of their respective assets are now subject; 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 either Buyer or Regent is now
subject.
6.5 Commissions or Finder's Fees. Neither Buyers, Regent, nor any person
or entity acting on behalf of Buyers or Regent 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, with the sole exception of Media Venture
Partners.
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6.6 Litigation. Buyers and Regent are 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 Buyers or Regent, threatened against or affecting Buyers or
Regent that would affect Buyers' ability to carry out the transactions
contemplated by this Agreement.
6.7 Full Disclosure. No representation or warranty made by Buyers or
Regent contained in this Agreement or any certificate, document or other
instrument furnished or to be furnished by Buyers 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 Buyers' knowledge, as of the date hereof,
there is no pending or contemplated event or occurrence that would cause any of
the representations of the Buyers or Regent in this Agreement not to be true and
complete on the date of such event or occurrence as if made on that date.
6.8 Financial Qualification. Buyers and Regent have funds available to
them subject to terms of an existing Credit Agreement and Stock Purchase
Agreement which are sufficient to enable them to acquire the Stations Assets and
to consummate the transactions contemplated by this Agreement.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Buyers,
each of which is true and correct on the date hereof, shall survive the Closing
for the periods of time provided for in Section 15.1 and, except as provided in
Section 15.3.5, shall be unaffected by any investigation heretofore or hereafter
made by Buyers:
7.1 Organization and Standing. Seller is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Minnesota, is authorized to conduct business within the State of Minnesota, and
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.
7.2 Authorization and Binding Obligation. Seller has all necessary power
and authority of a limited partnership to enter into and perform this Agreement
and the transactions contemplated hereby. Seller's execution, delivery and
performance of this Agreement and the transactions contemplated hereby have been
duly authorized, executed and delivered by Seller and, assuming the due
authorization, execution and delivery of this Agreement by Buyers and Regent,
this Agreement will constitute 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.
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7.3 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 with respect to governmental consents, in Schedule 7.8
with respect to consents required in connection with the assignment of leases
relating to the Leased Real Estate, and in Schedule 7.9 with respect to consents
required in connection with the assignment of certain other Contracts, 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 charter or organizational
documents, 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 Material
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, excluding in each
case violations which, or breaches and approvals the absence of which,
individually or in the aggregate could not reasonably have a material adverse
effect on the Seller or the Stations Assets.
7.4 Government Authorizations.
7.4.1 Schedule 7.4 hereto contains a true and complete list of
the Stations Licenses and other material licenses, permits or other
authorizations from governmental and regulatory authorities which are required
for the lawful conduct of the business and operations of the Stations in the
manner and to the extent they are presently conducted (including, without
limitation, auxiliary licenses associated with each Station). Seller has
delivered to Buyers true and complete copies of the Stations Licenses and the
other material licenses, permits and authorizations listed in Schedule 7.4,
including any and all amendments and other modifications thereto.
7.4.2 Seller is the authorized legal holder of the Stations
Licenses and other licenses, permits and authorizations listed in Schedule 7.4.
Except as set forth Schedule 7.4, none of the Stations Licenses and other
licenses, permits and authorizations listed in Schedule 7.4 is subject to any
restrictions or conditions which would limit in any material respect the full
operation of the Stations as now operated.
7.4.3 Except for the governmental consents contemplated by
Article 5 or as set forth in Schedule 7.4, and except for matters affecting the
radio broadcast industry generally, there are no applications, 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 in Schedule 7.4, the Stations Licenses and the other
licenses, permits and authorizations listed in Schedule 7.4 are in full force
and effect and are not materially impaired as a result of any act or
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omission of Seller or its members, managers, officers, or employees. The
operations of the Stations are now and have been during the current renewal term
in all material respects in accordance with the Stations Licenses and the
underlying construction permits and the other licenses, permits and
authorizations listed in 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 members,
managers, officers, or employees, which could reasonably be expected to result
in the revocation, modification, non-renewal or suspension of any of the
Stations Licenses or the other licenses, permits and authorizations listed in
Schedule 7.4, 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 the other licenses, permits and authorizations listed in Schedule 7.4 or
which could reasonably be expected to have a material adverse effect on Buyers'
ability to continue to operate the Stations as they are currently operated.
7.4.4 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 the
respective transmissions of any Station or the public's reception of such
transmissions which exceeds the interference which the Stations are required to
accept pursuant to the provisions of the applicable Stations License.
7.4.6 Seller has no reason to believe that the Stations
Licenses and the other licenses, permits, or authorizations listed in Schedule
7.4 will not be renewed in their ordinary course.
7.4.7 All reports, forms, and statements required to be filed
by Seller with the FCC with respect to the Stations since the grant of the last
renewal of the Stations Licenses which the failure to file would materially
adversely affect the Stations Licenses have been filed and are complete and
accurate in all material respects.
7.4.8 The operation of the Stations and all of the Stations
Assets are in compliance in all material 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
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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 have been filed by it and has paid in full all taxes,
estimated taxes, interest, assessments, and penalties shown as due and payable
by it on such returns. All returns and forms which have been filed have been
true and correct in all material respects and, to the knowledge of Seller, no
tax or other payment in an amount other than as shown on such returns and forms
that is required to be paid by Seller with respect to the periods covered by
such returns 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 Buyers. To the
best of Seller's knowledge, none of its tax returns, federal, state, local or
foreign, are currently 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 but excluding tax liabilities prorated
under Section 3.3.1) which will result in a lien on the Stations Assets after
conveyance thereof to Buyers or in any other form of transferee liability to
Buyers.
7.7 Personal Property. Schedule 7.7 hereto contains a list of all
material items of tangible personal property owned by Seller and used or useful
in the conduct of the business and operations of the Stations. Schedule 7.7 also
separately lists any material tangible personal property leased by Seller
pursuant to leases included within the Contracts. Except as disclosed in
Schedule 7.7, Seller has, and following the Closing, RBI 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 none of
such Stations Assets at the Closing will be subject to any Encumbrances except
for liens for taxes not yet due and payable, and except for the Assumed
Liabilities. 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 listed or described on Schedule 7.7 are in good and
technically sound 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 maintained in a manner
consistent in all material respects with generally accepted standards of good
engineering practice.
7.8 Real Property.
7.8.1 Schedule 7.8 hereto contains a complete and accurate
list of all real property (including without limitation, real property relating
to the towers, transmitters, studio sites and offices of the Stations) used by
Seller in connection with the operations of the Stations, identifying thereon
the real property that is owned by Seller or its Affiliates (the "Owned Real
Estate") or leased by Seller (the "Leased Real Estate") (collectively, the "Real
Estate").
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7.8.2 Seller will have on or before the Closing Date good and
marketable title in fee simple to all of the Owned Real Estate, free and clear
of all Encumbrances, except for (i) liens for taxes and other governmental
charges which are not yet due and payable, (ii) restrictions, covenants, and
easements of record which do not materially detract from the existing use of the
property affected or affect the marketability of the same, and (iii) zoning laws
and other land use restrictions that do not impair the full use of the Owned
Real Estate in the same or substantially similar manner as such is currently
used (collectively, the "Permitted Encumbrances") and except for such
Encumbrances described in Schedule 7.8 as will be released and discharged on or
prior to the Closing Date.
7.8.3 Seller is currently in possession of all Real Estate. To
the best knowledge of Seller, 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 Buyers
true and complete copies of all Contracts relating to the Real Estate. Except as
set forth in Schedule 7.9 hereto, the assignment of the Contracts relating to
the Leased Real Estate to RBI 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 RBI.
7.8.4 Seller has legal access to all of the Real Estate, and
except as described in Section 1.4, Section 11.10 or as further described on
Schedule 7.8, all easements, rights of way, and real property licenses relating
to Seller's use thereof, if any, have been properly recorded in the appropriate
public recording offices. Subject to (i) the provisions of Section 1.4 relating
to the Quiet Title Proceeding; and (ii) the requirement of obtaining the
Easement described in Section 11.10, the Real Estate will include, on or before
the Closing Date, all the real property, easements, rights of way, and other
real property interests necessary to conduct the business and operations of the
Stations as they are now conducted. Except as described in Section 1.4, Section
11.10 or in Schedule 7.8, none of the buildings, structures, improvements or
fixtures constructed on any 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 in all material respects with all "set back"
lines, easements, covenants, restrictions and all applicable building, fire,
zoning, health and safety laws and codes. No utility lines serving such Real
Estate pass over the lands of a third party except where appropriate easements
have been obtained. Except as described in Schedule 7.8, all buildings,
structures, towers, antennae, improvements and fixtures situated on the Real
Estate are in good and technically sound operating condition, ordinary wear and
tear excepted, to the best knowledge of Seller 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 (i) adequate rights
of ingress and egress, and (ii) to the extent applicable 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.
Except for the Quiet Title Proceeding contemplated by Section 1.4, there is no
pending or, to the best knowledge of Seller, threatened condemnation or other
legal proceeding or action of any kind relating to the Real Estate.
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7.9 Contracts. Schedule 7.9 lists all Contracts to which Seller is a
party, or which are binding on Seller and that relate to the Stations or to the
Stations Assets as of the date of this Agreement except for those which: (i)
were entered into in the ordinary course of business and which do not require
aggregate payments by any party thereto in excess of $5,000; (ii) are terminable
without further consideration on no more than 90 days' prior notice; or (iii)
constitute an advertising contract of the Seller which has been entered into in
the ordinary course of business consistent with past practices. Those Material
Contracts (as hereinafter defined) 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 Buyers
have agreed are material to the operation of the Stations Assets and the valid
assignment of which and receipt by Buyers 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 "Material Contracts") are identified by an "M" in the left margin of
Schedule 7.9.
7.10 Status of Contracts, etc. Seller has delivered to Buyers true and
complete copies of all written Contracts listed on Schedule 7.9 and true and
complete memoranda of all oral Contracts, including any and all amendments and
other modifications thereto. Except as disclosed on Schedule 7.9, all of the
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 material respects with all Contracts and is not in default in
any material respect 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. Except as disclosed on Schedule 7.9, none of the Contracts
for the sale or provision of radio time or advertising to be fulfilled in whole
or in part after the Closing Date (i) shall be for rates materially below the
Stations' generally prevailing rates for such time or advertising as of the date
such contracts were executed, or (ii) shall be commissionable to any employee
after he/she has left the employ of the Stations.
7.11 Environmental. Except as set forth in Schedule 7.11, Seller has
complied in all material respects 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. SectionSection 9601 et seq., Toxic Substances
Control Act. 15 U. S. C. Section Section 2601 et seq., the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. SectionSection 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 in violation of applicable
laws or regulations or are currently located in quantities in violation of
applicable laws and regulations in, on, or
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under or about the Real Estate or contained in the tangible personal property
included in the Stations Assets. The Stations Assets and Seller's use thereof
are not in violation in any material respect of any Environmental Laws or any
occupational, safety and health or other applicable law now in effect. As
between Buyer and Regent, on the one hand, and Seller on the other hand, 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 Seller or under which Seller is a licensee and which is used in the
conduct of Seller's business and operations with regard to the Stations. Except
as set forth on Schedule 7.12, to the best of Seller's knowledge: (a) Seller's
right, title and interest in the Intellectual Property as owner or licensee, as
applicable, is free and clear of all Encumbrances in favor of any third party
except for sublicensees, if any, and for the rights of third parties in and to
any Intellectual Property which is licensed to the Seller on a non-exclusive
basis, and, to the extent any of the Intellectual Property is licensed to
Seller, such interest is valid and uncontested by the licensor thereof; (b) all
computer software located at the Stations' facilities or used in the Stations'
business or operations which is material to the operation of the Stations as
presently conducted is (i) properly licensed to Seller, and all of Seller's uses
of such computer software are authorized under such licenses, and (ii) is, to
the best of Seller's knowledge, "Year 2000 compliant"; (c) all of Seller's
right, title and interest in and to the Intellectual Property identified by an
"M" in the left margin of Schedule 7.12 as being material shall be assignable to
RBI at Closing, and upon such assignment, RBI shall receive valid and
enforceable right, title, and interest in and to all tangible and intangible
property rights of Seller existing in such material Intellectual Property; (d)
and there are no infringements or unlawful use of such material Intellectual
Property by Seller in connection with Seller's business or operations.
7.13 Financial Statements. Set forth in Schedule 7.13 are complete
copies of the reviewed financial statements of Seller relating to the Stations
for the years ended December 31, 1997, 1996 and 1995, together with internally
prepared interim statements of operations for the Stations for the ten-month
period ending October 31, 1998 (collectively, the "Financial Statements"). The
Financial Statements are prepared in accordance with the books and records of
Seller and in accordance with generally accepted accounting principles
consistently applied and maintained throughout the periods indicated except (i)
that the interim Financial Statements lack footnotes and other presentation
items, (ii) that the interim Financial Statements are subject to year-end
adjustments, and (iii) as has been disclosed in Schedule 7.13 or in the notes to
the reviewed financial statements. The Financial Statements, including the notes
attached or accompanying said Financial Statements, present fairly the financial
condition, results of operations and cash flow of the Stations for the periods
indicated. None of the Financial Statements understates in any material respects
the actual 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.
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7.14 Personnel Information.
7.14.1 Schedule 7.14 contains a true and 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 agreements affecting such persons
and their employment by Seller. To the best of Seller's knowledge, no individual
employee intends to terminate his or her employment relationship with the
Stations for reason of the transactions contemplated hereby.
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
Seller 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 Seller at the Stations.
7.14.3 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. Except as set forth in Schedule 7.15, 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 Licenses), or before any other tribunal duly authorized
to resolve disputes.
7.16 Compliance With Laws. Except as set forth in Schedule 7.16: (i)
Seller is not in material violation of, nor has Seller received any notice or
communication in writing 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 all
material respects in compliance with all laws, regulations and governmental
orders applicable to the conduct of the business and operations of the Stations,
and to the best of Seller's knowledge its present use of the Stations Assets
does not violate any of such laws, regulations or orders in any material
respect.
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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 Seller employed at the Stations. 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 Seller 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, with the exception of Media Venture Partners.
7.19 Conduct of Business in Ordinary Course; Adverse Changes. Since
December 31, 1997: (a) Seller has conducted the business of the Stations in all
material respects only in the ordinary course consistent with Seller's past
practices; (b) there has not been any material adverse change in the business,
assets, properties, prospects or condition (financial or otherwise) of the
Stations, or any damage, destruction, or loss which has had a material adverse
effect on the Stations Assets; and (c) except as identified on Schedules 7.7,
7.8 or 7.9 or incurred in the ordinary course of business, Seller has not
created, assumed, or suffered any mortgage, pledge, lien or encumbrance on any
of the Stations Assets.
7.20 Instruments of Conveyance: Good Title. The instruments to be
executed by Seller and delivered to Buyers at the Closing, conveying the
Stations Assets to Buyers, will transfer good and marketable title to the
Stations Assets free and clear of all Encumbrances, except for the Assumed
Liabilities and Permitted Encumbrances and except as set forth in Schedule 7.7
and Schedule 7.8 hereto.
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, after the Closing, will result in any form of
transferee liability against Buyers or subject the Stations Assets to any
Encumbrance or otherwise affect the full, free and unencumbered use of the
Stations Assets by Buyers in the manner currently used by Seller.
7.22 Full Disclosure. No representation or warranty made by Seller
contained in this Agreement or 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 as of the date hereof, there is no
pending 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 Agreement a warranty or representation is qualified by
a word or phrase referring to Seller's knowledge (or similar terms), it shall
mean to the actual knowledge of
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Andrew W. Hilger, Steve Stewart, or Deb Huschle, 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 BUYERS (AND REGENT)
8.1 Closing. Subject to Article 11 hereof, on the Closing Date, Buyers
shall purchase the Stations Assets from Seller as provided in Article 1 hereof
and RBI shall assume the Assumed Liabilities of Seller as provided in Article 2
hereof.
8.2 Notification. Buyers will provide Seller prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 6. Buyers shall also notify Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyers or Regent which challenges the transactions
contemplated hereby. Subject to the provisions of Sections 5.2 and 16.1, should
any fact relating to Buyers or Regent which would cause the FCC to deny its
consent to the transactions contemplated by this Agreement come to Buyers' or
Regent's attention, Buyers will promptly notify Seller thereof and will use
their commercially reasonable 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.
8.3 No Inconsistent Action. Buyers and Regent 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 Buyers or
Regent contained herein to be or become false or invalid or which could hinder
or delay the consummation of the transactions contemplated by this Agreement.
8.4 Employees. RBI shall offer a position of employment to each of
Seller's employees who are employed at the Stations except those who have an
equity interest in Seller or its Affiliates. Such offer shall be made within a
reasonable period of time prior to Closing and shall be on terms of employment
which are not materially different from those applicable to such employee
described in Schedules 7.14 and 7.17 hereto. Failure of RBI to make such offers
shall be deemed a material breach by RBI of this Agreement. RBI shall not be in
default hereunder to the extent any employee fails to accept such offer or for
the failure to make an offer to any employee who elects to terminate his/her
employment, or such employment is terminated by Seller, prior to the Closing
Date.
8.5 Senior Lender Consents. The Buyers and Regent shall exercise
commercially reasonable efforts in obtaining the Senior Lender Consents
contemplated by Section 1.4 hereof.
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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 with the prior written consent of Buyers (which
shall not be unreasonably withheld, delayed, or conditioned), Seller shall act
in accordance with the following:
9.1.1 Seller shall use its commercially reasonable efforts to
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 Stations Assets and ongoing operations of the Stations, including
but not limited to maintaining the independent identity of the Stations,
retaining the current format and programming (including the content thereof) of
the Stations, continuing at historical levels and frequencies spending for
promotions, advertising, and survey testing, and using its commercially
reasonable efforts to retain at the Stations the services of all active
employees, consultants and agents of the Stations.
9.1.2 Seller shall use its commercially reasonable 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. Seller shall not change, alter or modify, in any
material respect, its business practices relating to the generation of
advertising revenue including, but not limited to increasing costs and expenses
incurred by the Seller for the short-term purpose of generating revenue to meet
the thresholds set forth in Section 11.9. This restriction shall not prevent the
Seller from making such changes in its procedures which are done in the ordinary
course of business, consistent with past practice, which activities may include,
but shall not be limited to, the practice of selling "surplus advertising
inventory" in accordance with Seller's historical practices.
9.1.3 Seller shall operate the Stations in all material
respects in accordance with FCC rules and regulations and the Stations Licenses
and with all other laws, regulations, rules and orders, and shall not (i) cause
or permit by any act, or failure to act, any of the Stations Licenses or other
licenses, permits or authorizations listed in Schedule 7.4 to expire, be
surrendered, adversely modified, or otherwise terminated, (ii) cause the FCC to
institute any proceedings for the suspension, revocation or adverse modification
of any of the Stations Licenses, or (iii) fail to prosecute with due diligence
any pending applications to the FCC.
9.1.4 Subject to the provisions of Sections 5.2 and 16.1,
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 Buyers thereof and will use its commercially
reasonable efforts to take such steps as may be necessary to remove any such
impediment to the FCC's Consent.
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9.1.5 Except for changes or actions in the ordinary course of
business consistent with past practices, Seller shall not: (i) sell broadcast
time on a prepaid basis (other than in the course of existing credit practices);
(ii) except as required by the 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; (iii) 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; (iv) provide for any new pension, retirement or other employment
benefits for employees of the Stations or any increases in any existing
benefits, (v) except as contemplated by Section 10.8 or as disclosed on Schedule
1.2 hereof relating to the bifurcation of KKJM contracts, modify, change or
terminate any Contract; or (vi) change the advertising rates in effect as of the
date hereof; provided, however that subparts (ii) and (iii) of this Section
9.1.5 shall not apply to any equity owner of Seller or any of its Affiliates who
is not intended to become an employee of RBI as a result of this transaction.
9.1.6 Seller shall give or cause the Stations to give Buyers
and Buyers' counsel, accountants, engineers and other representatives, at
Buyers' 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 Buyers 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) that Buyers may
reasonably request. The rights of Buyers 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 Seller shall use its commercially reasonable efforts to
obtain the Easement described in Section 11.10 and 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 Buyers 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 Buyers of
any litigation, arbitration or administrative proceeding pending or, to the best
of its knowledge, threatened, which challenges the transactions contemplated
hereby. Seller shall promptly notify Buyers if any of the normal broadcast
transmissions of any Station are interrupted, interfered with or in any way
impaired, by reason other than normal maintenance activities and shall provide
Buyers with prompt written notice of the problem and the measures being taken to
correct such problem. If such Station is not restored so that operation is
resumed to full licensed power and antenna height within five (5)
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days of such event, or if more than five (5) such events occur within any thirty
(30) day period, or if any of the Stations shall be off the air for more than
seventy-two (72) consecutive hours, then Buyers shall have the right to
terminate this Agreement by giving written notice not more than thirty (30) days
after the expiration of the applicable period, but in no event later than the
Closing Date.
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 or which could reasonably be expected to
hinder or delay 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 Buyers the Stations Assets and the
Assumed Liabilities subject to and 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, Seller shall not: (a) waive
or release any material 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 in an aggregate amount in excess of $25,000 for which Buyers 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 Stations' programming policies; (e) change the call letters of any Station;
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 date hereof
through the Closing or earlier termination of this Agreement, Buyers shall have
the exclusive right to consummate the transactions contemplated herein, and
during such exclusive period, Seller agrees that neither Seller, nor any
partner, 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 other than Exchanges contemplated in Section 10.7
of this Agreement (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
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that Buyers default 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.
ARTICLE 10
JOINT COVENANTS
Buyers 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,
Buyers and Seller shall each keep confidential all information obtained by it
with respect to the other parties hereto and their respective businesses 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, together with any summaries thereof.
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 or request 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 and afford the other with a reasonable opportunity under the circumstances
to review and make reasonable modifications thereto.
10.2 Cooperation. Subject to express limitations contained elsewhere
herein, Buyers 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.
10.3 Control of Stations. Buyers shall not, directly or indirectly,
control, supervise or direct the operations of the Stations prior to the
Closing. Such operations, including complete
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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 non-Material
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 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 RBI 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 RBI of all of Seller's otherwise
transferable rights, benefits, title and interest in and to the Contracts, and
where necessary or appropriate, RBI 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 commercially reasonable efforts to provide RBI with the financial and
business benefits of such Contracts (including, without limitation, permitting
RBI to enforce any rights of Seller arising under such Contracts), and RBI
shall, to the extent RBI 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 RBI was to assume
those obligations pursuant to the terms 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, Buyers and Seller shall use their commercially reasonable 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 Employee Matters. Except as provided in Section 3.3, regarding
proration, Seller shall be responsible for the payment of all compensation and
accrued employee benefits payable to all employees up to the Closing Date.
Seller acknowledges and agrees that it, and not Buyers, is and shall be solely
responsible for any and all severance, 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 Closing Date, is a retiree, former employee, or current employee of
Seller, relating to the period up to the Closing Date. Buyers, as 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
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any time except for vacation and sick leave for which there have been prorations
pursuant to Section 3.3.1.
10.7 Like-kind Exchanges. Buyers acknowledge and agree that they shall
cooperate fully with the Seller and shall take any reasonable action requested
by the Seller at the cost of Seller in order to effect a like-kind exchange of
specific Real Estate and/or to effect a like-kind exchange of the Stations
Assets, including the Stations Licenses consisting of the WJON-AM business
segment ("Exchanges"); provided, however, that the Exchanges shall not result in
any material delay or increase in the cost or expense to the Buyers contemplated
by this Agreement.
10.8 Transition Services Agreement. RBI and Seller shall have entered
into a Transition Services Agreement with respect to the issues and matters
identified in Schedule 10.8, which Transition Services Agreement shall be
reasonably acceptable to counsel for RBI and the Seller.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYERS
The obligations of Buyers hereunder are, at their option, subject to
satisfaction or waiver, 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 if limited by materiality, in accordance with
the terms thereof in all respects and if not so limited by materiality, 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 (b) 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 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 Buyers shall have received a certificate, dated as of
the Closing Date, from Seller, executed by the President 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; and (b) Seller 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.
11.2 Governmental Consents. Subject to the provisions of Section 4.1,
the FCC Consent shall have been obtained and shall have become a Final Order.
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11.3 Governmental Authorizations. Seller shall be the holder of the
Stations Licenses and all other licenses, permits and other authorizations
listed in Schedule 7.4, and there shall not have been any modification of any of
such licenses, permits and other authorizations 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
or any other licenses, permits or other authorizations listed in Schedule 7.4.
11.4 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened 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. The consents identified on Schedule 6.4
shall have been obtained, all Material Contracts shall be in full force and
effect on the Closing Date, and Seller shall have obtained and shall have
delivered to RBI all appropriate third-party consents in form and substance
reasonably acceptable to RBI (including estoppel certificates for the leases
related to the Leased Real Estate) in connection with the assignment of the
Material Contracts to RBI.
11.6 Closing Documents. Seller shall have delivered or caused to be
delivered to Buyers, 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 Buyers, effecting the sale, transfer,
assignment and conveyance of the Stations Assets to Buyers, including, without
limitation, each of the documents required to be delivered by it pursuant to
Article 14.
11.7 Satisfactory Investigation of Station Facilities. Buyers shall
have conducted such examination and investigation of the Real Estate and title
thereto, studios, transmitter facilities, and other Stations Assets and
personnel on matters covered by or generally within the scope of Seller's
warranties and representations as Buyers deem advisable or appropriate and shall
have determined that the findings and results of such examination and
investigation are satisfactory in its sole discretion. Said investigation shall
be conducted, in substantial part, through the use of independent third parties
who shall provide detailed reports summarizing his/her/their findings with
respect to the Stations Assets and other matters within the scope of review as
set forth in this Section 11.7 (the "Inspection Reports"). If Buyers do not
advise Seller in writing within thirty (30) days after the date of this
Agreement of any unsatisfactory findings or results, this condition shall be
deemed waived. If Buyers do advise Seller of any unsatisfactory findings or
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results, and such results relate to the discovery of a breach of a
representation or warranty by the Seller which is disclosed in any of the
Inspection Reports and which is/are capable of being cured by Seller to Buyers'
reasonable satisfaction, Seller shall have the obligation (if the cost is
reasonably expected to be $200,000 or less) or option (if the cost is reasonably
expected to be more than $200,000) to cause the same to be cured to Buyers'
reasonable satisfaction prior to Closing Date, provided, that Buyers provide to
Seller a copy of the applicable Inspection Report which substantiates the basis
for the alleged breach of warranty or representation. Notwithstanding the
foregoing to the contrary, the Seller's obligation to cure and/or remediate
pursuant to Section 11.7 and 11.8 shall not exceed $200,000 in the aggregate.
11.8 Environmental Studies. Buyers shall have obtained at their cost
and expense within thirty (30) days following the date of this Agreement (which
may be extended up to an additional fifteen (15) days in the event that the
failure to obtain such report is attributable to matters beyond the control of
the Buyers), Phase I environmental assessment reports on the Real Estate
confirming the representations and warranties of Seller on environmental matters
("Phase I Report"). The Seller shall be listed among the parties who are to
receive a reliance letter upon the Phase I Report. If the Phase I Report
discloses any condition which is inconsistent with the representations and
warranties of Seller, and such is capable of being cured by Seller to Buyers'
reasonable satisfaction, Seller shall have the obligation (if the cost is
reasonably expected to be $200,000 or less) or option (if the cost is reasonably
expected to be more than $200,000) to cause the same to be cured to Buyers'
reasonable satisfaction prior to Closing Date. Notwithstanding the foregoing to
the contrary, the Seller's obligation to cure and/or remediate pursuant to
Section 11.7 and 11.8 shall not exceed $200,000 in the aggregate.
11.9 No Adverse Change. No material adverse change in condition or
status of the Stations or the Stations 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 since December 31, 1997,
be threatened or be reasonably likely to occur, and no material adverse change
in the business, financial condition or results of operations shall be deemed to
have occurred. For purposes of this Agreement, a material adverse change in the
business, financial results or result of operations shall be deemed to have
occurred if, and only if, the combined gross revenue generated by the Stations
and KKJM-FM ("Combined Gross Revenue") for the "Calculation Period" (which shall
be the 12 consecutive calendar months ending with the month immediately
preceding the month prior to the month in which the Closing occurs) is less than
$3,372,500. In the event that Combined Gross Revenue generated during the
Calculation Period is less than $3,372,500, then there shall be reduction of the
Purchase Price by $3.50 for every $1.00 by which Combined Gross Revenue is less
than $3,372,500; provided, however, in the event Combined Gross Revenue during
the Calculation Period is less than $3,195,000, in lieu of a reduction of the
Purchase Price, Buyers may terminate this Agreement.
11.10 Easement. Seller shall have obtained a perpetual easement for the
radio tower guy wire currently located on real property adjacent to the north
east corner of the Headquarters Property in form reasonably satisfactory to the
Buyers ("Easement").
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11.11 Title Insurance Buyers shall have obtained a title insurance
commitment ("Commitment") issued on the Owned Real Estate by a title company
("Title Company") within the thirty-day period identified in Section 11.7.
Buyers shall also cause the Title Company to deliver to the Buyers with the
Commitment copies of all title exceptions shown on the Commitment, except those
exceptions that will be released on the Closing Date. The title to the Owned
Real Estate shall be subject only to such permitted encumbrances acceptable to
the Buyers ("Permitted Real Property Encumbrances"). Permitted Real Property
Encumbrances shall include the 75' ingress and egress easement in Book 90 of
Deeds, page 340, subject to the provisions of Section 1.4 of this Agreement,
except that, as to parcel number 9 of the Headquarters Property, said easement
shall be deemed to be a Permitted Real Property Encumbrance. Within the
thirty-day period described in Section 11.7, Buyers shall make any objections to
the title of the Owned Real Estate. Buyer's objections shall be made in writing
or shall be deemed to have been waived. Buyers shall send said objections to
Seller. For purposes of this Agreement, Permitted Real Property Encumbrances
shall not be deemed to be objections to title if said Permitted Real Property
Encumbrances do not prohibit, restrict, materially detract from or impair the
full use of the Owned Real Estate for the operation of the Stations as presently
conducted by the Seller or affect the marketability of same. Objections to title
which are not Permitted Real Property Encumbrances shall be resolved in
accordance with the provisions of Section 1.4 of this Agreement.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder are, at its option, subject to
satisfaction or waiver, 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 Buyers and Regent
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 expressly permitted or contemplated by the terms of this
Agreement.
12.1.2 All the terms, covenants and conditions to be complied
with and performed by Buyers or Regent 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 the President of each of Buyers and Regent, to the
effect that: (a) the representations and warranties of Buyers and Regent
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) Buyers
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and Regent have complied with or performed in all material respects all terms,
covenants and conditions to be complied with or performed by them on or prior to
the Closing Date.
12.2 Governmental Consents. The FCC Consent shall have been obtained
and, subject to the provisions of Section 4.1 hereof, shall have become a Final
Order.
12.3 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened 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; (d) seeks material damages on account of
the consummation of any transaction contemplated hereby; (e) is a petition in
bankruptcy by or against any of Buyers or Regent, an assignment for the benefit
of creditors, or other similar proceeding.
12.4 Third Party Consents. Seller shall have received all appropriate
third party consents in form and substance reasonably acceptable to Seller for
the assumption by RBI of the Assumed Liabilities under the Material Contracts
and to obtain the Easement described in Section 11.10.
12.5 Matters Relating to Real Estate.
12.5.1 The parties shall have accepted the Excluded Real
Estate Legal Description prepared by the Surveyor as describing the Real Estate;
and are prepared to execute an agreement to that effect.
12.5.2 Seller shall have received the Senior Lender Consents
in form reasonably acceptable to counsel for the Seller;
12.5.3 RBI shall have joined with the Seller in the Quiet
Title Proceeding;
12.6 Transition Services Agreement. The Seller shall have received the
Transition Services Agreement in the form contemplated by Section 10.8.
12.7 Closing Documents. Buyers 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 them 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
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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 paid one-half by
Seller and one-half by Buyers. 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 shall be paid
one-half by Seller and one-half by Buyers. Any fees or commission due Media
Venture Partners as a result of this transaction shall be paid by Seller,
provided Seller shall be reimbursed at the time of Closing by Buyers for the
amount paid by Seller to the extent of $100,000.
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 Buyers the following:
14.1.1 Certified resolutions of all requisite action 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 Seller is duly
organized and in good standing in the State of Minnesota;
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 the parties and their counsel, as shall be
effective to vest in Buyers good and marketable title in and to the Stations
Assets in accordance with the terms of this Agreement, free, clear and
unencumbered except for the Assumed Liabilities and 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 C effectuating the assignment and assumption of the Assumed Liabilities
(the "Assignment and Assumption Agreement");
14.1.6 The Indemnification Escrow Agreement;
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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 Buyers;
14.1.8 A written opinion of Seller's corporate counsel, on
which Buyers' lenders shall be entitled to rely, in substantially the form set
forth in Exhibit H;
14.1.9 A written opinion of Seller's FCC counsel, on which
Buyers' lenders shall be entitled to rely, confirming to Buyers' reasonable
satisfaction the matters listed on Exhibit F;
14.1.10 A Non-Competition Agreement in the form of Exhibit D
(the "Non-Competition Agreement") executed by Seller and Andrew W. Hilger;
14.1.11 A Lease Agreement substantially in the form of Exhibit
E (the "Lease Agreement") whereby RBI shall lease to Seller for use as a studio
for radio station KKJM-FM for a term of up to one (1) year at no cost to Seller
a portion of Seller's building being acquired by RBI in this transaction;
14.1.12 The Easement described in Section 11.10;
14.1.13 The Memorandum of Re-conveyance;
14.1.14 The agreement acknowledging of the Excluded Real
Estate Legal Descriptions;
14.1.15 The Transition Services Agreement;
14.1.16 The Nominee Agreement transferring title to the
Headquarters Property to the Seller as contemplated by Section 1.4 hereof for
the purpose of completing the Quiet Title Proceeding, platting of the
Headquarters Property, placing Seller in a position of being able to transfer to
RBI all Owned Real Estate and effecting the re-conveyance of the Excluded Real
Property (the "Nominee Agreement"); and
14.1.17 Such additional information, materials, agreements,
documents and instruments as Buyers and their counsel may reasonably request in
order to consummate the Closing.
14.2 Buyers' and Regents Documents. At the Closing, Buyers shall
deliver or cause to be delivered to Seller the following:
14.2.1 Certified resolutions of the Board of Directors of each
of Buyers and Regent approving the execution and delivery of this Agreement and
authorizing the consummation of the transactions contemplated hereby;
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14.2.2 A certificate of Buyers and Regent, dated the Closing
Date, in the form described in Section 12.1.3;
14.2.3 Governmental certificates showing that RBI is
qualified to conduct business in the State of Minnesota and that each of Buyers
is duly organized and in good standing in the State of Delaware;
14.2.4 The Assignment and Assumption Agreement;
14.2.5 The Indemnification Escrow Agreement;
14.2.6 A written opinion of Buyers' and Regent's counsel in
substantially the form set forth on Exhibit G;
14.2.7 The Purchase Price in accordance with Section 3.1
hereof;
14.2.8 The Non-Competition Agreement;
14.2.9 The Lease Agreement;
14.2.10 The Transition Services Agreement;
14.2.11 Senior Lender Consents;
14.2.12 The agreement acknowledging the Excluded Real Estate
Legal Descriptions;
14.2.13 The Memorandum of Re-conveyance; and
14.2.14 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 Buyers, Regent and Seller in this Agreement shall survive
the Closing (subject to the provisions of Section 15.3.5, regardless of any
knowledge, investigation, audit or inspection at any time made by or on behalf
of Buyers, Regent or Seller) as follows:
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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 Minnesota.
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 7.11 relating to
environmental matters and 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.
15.1.4 All other Warranties shall survive for a period of one
(1) year from the Closing Date and until the earlier of (i) the date which is
thirty (30) days after Buyers' receipt from their auditors of audited financial
statements for the Stations for the 12-month period ended December 31, 1999 or
(ii) June 30, 2000.
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 potential Damages in such reasonable detail from which the
basis of a Claim subject to the provisions of Section 15.3 can be determined
(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 Buyers, Regent 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 Buyers
and Regent from and against any and all losses, costs, damages, liabilities and
expenses, including reasonable attorneys' fees and expenses ("Damages") incurred
by Buyers or Regent arising out of or related to: (a) any breach of the
Warranties given or made by Seller in this Agreement; (b) any material breach of
the Agreements made by Seller in the Agreement; (c) the Retained Liabilities;
(d) any failure of the parties to comply with any "bulk sales" laws applicable
to the transactions contemplated hereby; and (e) the conduct of the business and
operations of the Stations or any portion thereof or the use or ownership of any
of the Stations Assets prior to the Closing Date.
15.2.2 Buyers and Regent jointly and severally 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 Agreements and
Warranties given or made by either of Buyers or Regent
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in this Agreement; (b) the Assumed Liabilities, and (c) the conduct of the
business and operations of the Stations or any portion thereof or the use or
ownership of any of the Stations Assets on or after the Closing Date.
15.3 Procedures: Third Party and Direct Indemnification Claims. The
indemnified party agrees to give written notice within a reasonable time 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, provided
that the notice required with respect thereto as specified in Section 15.1.5 has
been given within the applicable survival period.
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 within (10) days after notice of any
such Claim from the indemnified party or shall otherwise fail to defend or
oppose following such election, 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 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 (not to be unreasonably withheld, delayed or
conditioned), 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
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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 Notwithstanding the provisions in Section 15.2, neither
Seller, Buyers nor Regent shall have the obligation to defend, indemnify and
hold harmless under Section 15.2.1(a) and 15.2.2(a) until and only to the extent
the aggregate Damages on account thereof exceed $75,000 and then, only to the
maximum amount of $2,000,000 in the aggregate, excluding therefrom however,
Damages for Claims related to matters of title, taxes, environment, or Licenses,
which shall be limited in maximum amount to the Purchase Price. Further, the
obligation to indemnify and hold harmless under Section 15.2.1(a) and Section
15.2.2(a) shall be reduced by the amount of any insurance proceeds received by
the indemnified party and shall be calculated after taking into account the
value of any tax benefits actually realized by the indemnified party as a result
of such Damages and the receipt of the indemnification payment to the end result
that the indemnified party shall be made whole from such Damages.
Notwithstanding any provision of this Agreement to the contrary,
Damages for which any indemnifying party may be liable for under Sections 15.2.1
or 15.2.2, whichever is applicable, shall exclude Damages for the breach or
falsity of any Warranty if (a) the indemnified party had conscious awareness of
facts or law which establish the existence of such breach or falsity (i) prior
to the execution of this Agreement; or (ii) with respect to Buyers and Regent,
subsequent to the execution of this Agreement but only to the extent such facts
are contained in the Phase I Report or any of the Inspection Reports, and (b)
such indemnified party failed to inform the indemnifying party of such breach of
Warranty prior to the Closing of the transaction contemplated by this Agreement,
provided, however, in the event that the Buyers elect to waive the requirements
that the conditions of Closing by Buyers described in Sections 11.7 and/or 11.8
be satisfied at the time of Closing, the Seller's aggregate obligation to
indemnify the Buyers and Regent, as the same relates to the existence of
breaches of Warranties described in Sections 11.7 and/or 11.8, shall, in no
event exceed $200,000 in the aggregate.
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 Buyers and Seller,
this Agreement may be terminated on such terms and conditions as so agreed; or
16.1.2 By written notice of Buyers to Seller if Seller
breaches in any material respect any of its representations or warranties or
defaults in any material respect in the
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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 Buyers; or
16.1.3 By written notice of Seller to Buyers if either Buyer
or Regent 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/their 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 Buyers to Seller or by Seller to
Buyers 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 Buyers to Seller, or by Seller to
Buyers, 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 Buyers, if any court, legislative body or governmental or
regulatory authority has taken, or is reasonably expected to take, action that
reasonably would have a material adverse effect on the ability of Buyers to
operate the stations as contemplated by Buyers; or
16.1.6 By written notice of Buyers to Seller, or by Seller to
Buyers, if the Closing shall not have been consummated on or before June 30,
1999.
16.1.7 By written notice of Buyers to Seller if it shall
become apparent in both Seller's and Buyers' judgment reasonably exercised that
any condition to Buyers' obligation to close as set forth in Article 11 hereof
will not be satisfied on or before June 30, 1999.
16.1.8 By written notice of Seller to Buyers if it shall
become apparent in both Seller's and Buyers' judgment reasonably exercised that
any condition to Seller's obligation to close as set forth in Article 12 hereof
will not be satisfied on or before June 30, 1999.
16.1.9 By written notice of Buyers to Seller under the
conditions set forth in Section 9.2 hereof.
16.1.10 By written notice of Seller to Buyers if the consents
listed on Schedule 6.4 have not been obtained by Buyers within thirty (30) days
of submitting the FCC Application (and the notice is given thereafter before
such consents have been obtained), provided, with respect to the consent of
Waller-Sutton, as described on Schedule 6.4, Buyers and Regent shall not have
caused Waller-Sutton to deliver its written consent to the transactions
contemplated hereby, without any conditions or limitations not expressly set
forth in this Agreement, not later than ten (10) days following the expiration
of the diligence period described in Section 11.7 of this Agreement.
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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 in breach of this Agreement, monetary damages alone will not be
adequate to compensate Buyers for their injury. Buyers 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 Buyers to enforce this
Agreement, Seller shall waive the defense that there is an adequate remedy at
law. In the event of a material default by either party, which results in the
filing of a lawsuit for damages, specific performance, or other remedy by the
other party, the prevailing party shall be entitled to reimbursement by the
non-prevailing party of reasonable legal fees and expenses incurred by the
prevailing party.
16.4 Seller's Liquidated Damages. As more fully described in the
Deposit Escrow Agreement, in the event this Agreement is terminated because of
Buyers' 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 Buyers' 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 Buyers for failing to consummate this Agreement as a result of
Buyers' 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 receipt of such amount, however, shall not affect the right of Seller to
enforce specific provisions of this Agreement relating to confidentiality in
equity and to recover, to the extent allowed, costs and expenses incurred in
such enforcement Notwithstanding the foregoing, Seller shall be entitled to
recover its reasonable attorneys fees and costs of collection and enforcement of
the Deposit Escrow Agreement from the Buyers in addition to the Escrow Deposit.
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. If, prior to the Closing
Date, any material Stations Asset(s) shall have suffered, sustained or incurred
any material loss, damage or destruction, including, without limitation, any
environmental contamination or pollution, and Seller shall not have elected at
its sole option and expense to wholly repair or replace the Stations Asset(s)
which suffered, sustained or incurred the material loss, damage or destruction
with assets which are
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equivalent in value, form and function, Buyers shall have the right in their
sole discretion and election, to either (i) terminate this Agreement in which
event Buyers shall be entitled to receive a full refund of the Escrow Deposit,
or (ii) complete the purchase contemplated by this Agreement, in which event:
(a) Seller shall assign and transfer to RBI and RBI shall
be entitled to receive all insurance proceeds and
other compensation collected by reason of such loss,
damage or destruction, together with any rights to
receive any uncollected insurance proceeds or other
compensation relating to such loss, damage or
destruction in an amount equal to the sum of the
aggregate amount of any applicable deductibles under
any insurance policies covering the lost, damage or
destroyed Stations Asset(s); or
(b) Buyers shall be entitled to reduce the Purchase Price
of the Stations Assets by an amount equal to the
reasonable cost of repair, or if destroyed or damaged
beyond repair, or if expropriated, seized, lost or
stolen, by an amount equal to the replacement cost;
or
(c) Buyers shall be entitled to use alternatives (a) and
(b) concurrently, but not both with respect to any
single Stations Asset(s).
If Buyers elect to complete the purchase contemplated hereby
notwithstanding any such loss, damage or destruction, and if Seller assigns such
insurance proceeds and other compensation and any other rights thereto to RBI,
then Seller shall be released from any and all liability or responsibility with
respect to such loss, damage or destruction, but shall cooperate with RBI, at no
cost or expense to Seller, in collecting all insurance proceeds and other
compensation with respect to thereto. The Purchase Price hereunder in such event
shall be reduced by the amount of any deductible amounts under such insurance
which is not paid by Seller to RBI.
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 12b-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, the parties shall from time
to time, at the request of and without further cost or expense to the other
parties, 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,
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including but not limited to, vesting in Buyers good and marketable title to the
Stations Assets being transferred hereunder in accordance with the terms hereof,
and the Buyers or Regent, as applicable, 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 consummate the transaction contemplated hereby.
17.4 Preservation of Records. Subject to Section 10.1 hereof, RBI
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 six
(6) 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; provided, however, RBI
may destroy any part or parts of such records upon obtaining Seller's prior
written consent, which consent shall not be unreasonably withheld.
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. Seller may not voluntarily or involuntarily assign its
interest under this Agreement without the prior written consent of Buyers.
Buyers shall have the right to assign and/or delegate all or any portion of its
rights and obligations under this Agreement, including without limitation,
assignments as collateral, provided that any assignment by Buyers which will
likely cause a delay of more than seven (7) days in the issuance of FCC Consent
on the FCC Application shall require the prior written consent of Seller, and
provided further, that no such assignment and/or delegation shall relieve Buyers
or Regent of their respective 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 Buyers find it necessary or are required to provide to a third party a
collateral assignment of the Buyers' interest in this Agreement and/or any
related documents, Seller shall cooperate with the Buyers and any third party
requesting such assignment including but not limited to signing a consent and
acknowledgment of such assignment.
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.
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17.8 Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of Minnesota, 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 (3rd) day after deposit in the U.S. mail
if mailed by registered or certified mail, postage prepaid and return receipt
requested, on the business 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 Buyers,
and in the case of Buyers, by notifying Seller:
To Seller: WJON Broadcasting Company
640 S.E. Lincoln, Avenue
St. Cloud, MN 56304
Fax: (320) 251-1855
Attn: Mr. Andrew W. Hilger
Copy to: MOSS & BARNETT, a Professional Association
4800 Norwest Center
Minneapolis, MN 55402-4129
Fax: (612) 339-6686
Attn: Dave F. Senger, Esq.
To Buyers: Regent Broadcasting of St. Cloud, Inc.
c/o Regent Communications, Inc.
50 East RiverCenter Blvd.
Suite 180
Covington, KY 41011
Fax: (606) 292-0352
Attn: Mr. Terry S. Jacobs
Copy to: STRAUSS & TROY
2100 PNC Center
201 East Fifth Street
Cincinnati, OH 45202
Fax: (513) 241-8289
Attn: Alan C. Rosser, Esq.
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17.10 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.
17.11 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.
17.12 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.
17.13 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
WJON BROADCASTING COMPANY, A REGENT BROADCASTING OF
MINNESOTA LIMITED PARTNERSHIP ST. CLOUD, INC.
By WJON BROADCASTING COMPANY
A MINNESOTA CORPORATION
By: /s/ Andrew W. Hilger By: /s/ Terry S. Jacobs
-------------------------- -----------------------------
Name: Andrew W. Hilger Name: Terry S. Jacobs
Title: President Title: Chairman and CEO
Its: General Partner
REGENT LICENSEE OF ST. CLOUD, INC.
By: /s/ Terry S. Jacobs
-----------------------------
Name: Terry S. Jacobs
Title: Chairman and CEO
REGENT COMMUNICATIONS, INC.
By: /s/ Terry S. Jacobs
-----------------------------
Name: Terry S. Jacobs
Title: Chairman and CEO
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