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Exhibit 2(c)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered
this 30th day of March, 1999 by and between THE GUYANN CORPORATION, an Arizona
corporation, or its assignee (hereinafter referred to as "Buyer") and REGENT
LICENSEE OF FLAGSTAFF, INC., a Delaware corporation ("RLF") and REGENT
BROADCASTING OF FLAGSTAFF, INC. ("RBF," and with RLF collectively referred to as
"Seller").
RECITALS
WHEREAS, Seller owns and operates radio stations KZGL-FM licensed to
Cottonwood, Arizona, and KVNA-AM and FM licensed to Flagstaff, Arizona (together
the "Stations" and each individually, a "Station") pursuant to licenses issued
by the Federal Communications Commission ("FCC"), and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, certain
assets and assume certain obligations associated with the ownership and
operation of the Stations, all on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
PURCHASE OF ASSETS
1.1 Transfer of Assets. On the terms and subject to the conditions
hereof and subject to Section 1.2, on the Closing Date (as hereinafter defined),
Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer
shall purchase and assume from Seller, all of the right, title and interest of
Seller in and to all of the assets, properties, interests and rights of Seller
of whatsoever kind and nature, real and personal, tangible and intangible, owned
or leased (to the extent of Seller's leasehold interest) by Seller as the case
may be, wherever situated, which are used or held for use in the operation of
the Stations (the "Stations Assets"), including but not limited to all of
Seller's right, title and interest in and to the assets, properties, interests
and rights described in this Section 1.1:
1.1.1 all licenses, permits and other authorizations issued to
Seller by any governmental or regulatory authority including without limitation
those issued by the FCC (the licenses, permits and authorizations issued by the
FCC are hereafter referred to as the "Stations Licenses") used or useful in
connection with the operation of the Stations, including but not limited to
those described in Schedule 7.4, along with renewals or modifications of such
items between the date hereof and the Closing Date;
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
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other tangible personal property of every kind and description, and Seller's
rights therein, owned, leased (to the extent of Seller's leasehold interest) or
held by Seller and used or useful in connection with the operations of the
Stations, including but not limited to those items described or listed in
Schedule 7.7, together with any replacements thereof and additions thereto, made
between the date hereof and the Closing Date, and less any retirements or
dispositions thereof made between the date hereof and the Closing Date in the
ordinary course of business and consistent with past practices of Seller;
provided, however, Seller agrees that the value of all such assets retired or
disposed of and not replaced with an asset of like kind and quality shall not
exceed $5,000 in the aggregate unless Seller has obtained the prior written
approval of Buyer which shall not be unreasonably withheld.
1.1.3 all time sales agreements which are in effect on the
Closing Date, all Trade Agreements (time sales agreements for consideration
other than cash) which are in effect as of the date of this Agreement or which
(i) are entered into between the date hereof and the Closing Date and (ii) have
a term expiring on or before June 30, 1999, and (a) all other contracts,
agreements, leases and legally binding contractual rights of any kind, written
or oral, relating to the operation of the Stations and which are listed in
Schedule 7.8 and Schedule 7.9, together with (b) all contracts, agreements,
leases and legal binding contractual rights entered into or acquired by Seller
between the date hereof and the Closing Date which (i) are terminable on no more
than thirty (30) days notice for either no or nominal consideration or (ii) the
Buyer specifically agrees at Closing to assume (collectively (a) and (b) above
are referred to herein as the "Contracts").
1.1.4 all of Seller's rights in and to the call letters
KZGL-FM and KVNA-AM and FM, as well as all of Seller's rights in and to all
trademarks, trade names, service marks, franchises, copyrights, including
registrations and applications for registration of any of them, computer
software programs and programming material of whatever form or nature (to the
extent transferable), jingles, slogans, the Stations' logos and all other logos
or licenses to use same and all other intangible property rights of Seller,
which are used or useful in connection with the operation of the Stations,
including but not limited to those listed in Schedule 7.12 (collectively, the
"Intellectual Property") together with any associated goodwill and any additions
thereto between the date hereof and the Closing Date;
1.1.5 all programming materials and elements of whatever form
or nature owned by Seller, whether recorded on tape or other medium or intended
for live performance, and all copyrights owned by or licensed to Seller that are
used or useful in connection with the operation of the Stations, including all
such programs, materials, elements and copyrights acquired by Seller between the
date hereof and the Closing Date;
1.1.6 all of Seller's rights in and to all the files,
documents, records, and books of account relating to the operation of the
Stations or to the Stations Assets, including, without limitation, the Stations'
local public files, programming information and studies, blueprints, technical
information and engineering data, news and advertising studies or consulting
reports, marketing and demographic data, sales correspondence and account files,
lists of advertisers, promotional materials, credit and sales reports and
filings with the FCC and all written contracts, whether current or expired,
including without limitation, the Contracts to be assigned hereunder,
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logs, books and records relating to employees, financial, accounting and
operation matters, but excluding records relating solely to any Excluded Asset
(as hereinafter defined);
1.1.7 all of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Stations Assets and all similar
rights against third parties relating to items included in the Stations Assets;
1.1.8 the leasehold interests in the real property and
fixtures thereon described in Section 7.8; and
1.1.9 except for Excluded Assets, such other assets,
properties, interests and rights owned by Seller that are located at the
Station's facilities and used or useful in connection with the operation of the
Stations.
The Stations Assets shall be transferred to Buyer free and clear of all
debts, security interests, mortgages, trusts, claims, pledges or other liens,
liabilities, encumbrances or rights of third parties whatsoever
("Encumbrances"), except for Permitted Encumbrances (as defined in Section 7.7)
and except as set forth in Schedule 7.4, Schedule 7.7 and Schedule 7.8.
1.2 Excluded Assets. Notwithstanding anything to the contrary contained
herein, it is expressly understood and agreed that the Stations Assets shall not
include the following assets along with all rights, title and interest therein
(the "Excluded Assets"):
1.2.1 all cash and cash equivalents of Seller on hand and/or
in banks, including without limitation investment securities, certificates of
deposit, commercial paper, treasury bills, marketable securities, asset or money
market accounts and all such similar accounts or investments;
1.2.2 all investment securities and accounts receivable or
notes receivable existing on the Closing Date arising from services performed by
Seller in connection with the operation of the Stations prior to the Closing
Date;
1.2.3 all property owned by Seller or any affiliate of Seller
not located at the Stations' facilities and not used by Seller in connection
with the operation of the Stations;
1.2.4 subject to the limitation set forth in Section 1.1.2 of
this Agreement, all tangible and intangible personal property of Seller disposed
of or consumed in the ordinary course of business consistent with the past
practices of Seller between the date of this Agreement and the Closing Date;
1.2.5 all Contracts that have terminated or expired prior to
the Closing Date in the ordinary course of business consistent with the past
practices of Seller;
1.2.6 Seller's corporate minute books and records, corporate
stock record books and such other books and records as pertain to the
organization, existence or share capitalization
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of Seller and duplicate copies of such records as are necessary to enable Seller
to file its tax returns and reports, as well as any other records or materials
relating to Seller generally and not involving or relating to the Stations
Assets or the operation or operations of the Stations;
1.2.7 contracts of insurance, and any insurance proceeds or
claims made by, Seller relating to property or equipment repaired, replaced or
restored by Seller prior to the Closing Date;
1.2.8 all pension, profit sharing or cash or deferred (Section
401 (k)) plans and trusts and the assets thereof and any other employee benefit
plan or arrangement and the assets thereof, if any, maintained by Seller; and
1.2.9 any right, property or asset described in Schedule
1.2.9.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1 Assumption of Obligations. Subject to the provisions of this
Section 2. 1, Section 2.2 and Section 3.3, on the Closing Date, Buyer shall
assume the obligations of Seller arising or to be performed on and after the
Closing Date (except to the extent such obligations represent liabilities for
activities, events or transactions occurring, or conditions existing, on or
prior to the Closing Date) under: (a) the Contracts; (b) all property taxes and
other governmental charges on the Stations Assets; and (c) all time sales
agreements and Trade Agreements. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
Liabilities."
2.2 Retained Liabilities Notwithstanding anything contained in this
Agreement to the contrary, Buyer expressly does not, and shall not, assume or
agree to pay, satisfy, discharge or perform and will not be deemed by virtue of
the execution and delivery of this Agreement or any agreement, instrument or
document delivered pursuant to or in connection with this Agreement or otherwise
by reason of or in connection with the consummation of the transactions
contemplated hereby or thereby, to have assumed or to have agreed to pay,
satisfy, discharge or perform, any liabilities, obligations or commitments of
Seller of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or not disclosed to Buyer, other than the Assumed
Liabilities. Seller will retain and pay, satisfy, discharge and perform in
accordance with the terms thereof, all liabilities and obligations of the
Seller, other than the Assumed Liabilities, including but not limited to, the
obligation to assume, perform, satisfy or pay any liability, obligation,
agreement, debt, charge, claim, judgment or expense incurred by or asserted
against Seller related to taxes, environmental matters, stock option, pension or
retirement plans or trusts, profit-sharing plans, employment contracts, employee
benefits, severance of employees, product liability or warranty, negligence,
contract breach or default, or other obligations, claims or judgments asserted
against Buyer as successor in interest to Seller. All of such liabilities,
obligations and commitments of Seller described in this Section 2.2 shall be
referred to herein collectively as the "Retained Liabilities."
ARTICLE 3
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CONSIDERATION; ACCOUNTS RECEIVABLE
3.1 Delivery of Consideration. In consideration of the Agreement Not to
Compete and the sale of the Stations Assets to Buyer, in addition to the
assumption of certain obligations of Seller pursuant to Section 2.1 above, Buyer
shall, at the Closing (as hereinafter defined), deliver to Seller Two Million
Four Hundred Twenty Five Thousand Dollars ($2,425,000.00) by wire transfer of
immediately available funds, subject to adjustment pursuant to the provisions of
Sections 3.2 and 3.3 below (the "Purchase Price"). Notwithstanding the
foregoing, the parties agree that at the Closing, Buyer, Seller and William R.
Preston, Jr., Esq., as Escrow Agent (the "Indemnification Escrow Agent"), shall
enter into an Indemnification Escrow Agreement in the form of Exhibit A hereto
(the "Indemnification Escrow Agreement") pursuant to which Seller shall deposit
with the Indemnification Escrow Agent One Hundred Thousand Dollars ($100,000),
which funds shall be held in escrow for a period of at least twelve (12) months
from the Closing Date and will be used to satisfy indemnification claims of
Buyer pursuant to Section 15.2.1 hereof, and which funds shall otherwise be
administered and released as specifically provided for in the Indemnification
Escrow Agreement.
3.2 Escrow Deposit. (a) Upon the execution and delivery of this
Agreement, Buyer, Seller and William R. Preston, Jr., Esq., 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 Buyer
shall deposit the amount described below as a deposit on the amount of the
Purchase Price. Such amounts held in escrow shall be applied as set forth herein
and in the Deposit Escrow Agreement.
(b) Pursuant to the terms of the Deposit Escrow Agreement,
Buyer shall wire transfer One Hundred Thousand Dollars ($100,000) to an escrow
account established pursuant to the Deposit Escrow Agreement (the "Escrow
Deposit"). At the Closing, the Escrow Deposit shall be applied to the Purchase
Price to be paid to Seller and the interest accrued thereon shall be paid to
Buyer. As more fully described in the Deposit Escrow Agreement: (a) in the event
this Agreement is terminated because of Buyer's material breach of this
Agreement and all other conditions to Closing are at such time satisfied or
waived (other than such conditions as can reasonably be expected to be satisfied
by the Closing), the Escrow Deposit shall be paid to Seller as liquidated
damages as provided in Section 16.4 hereto for Buyer's material breach of this
Agreement (the payment of such sum to Seller shall discharge any liability Buyer
may have to Seller), and the interest accrued on the Escrow Deposit shall be
paid to Buyer; and (b) in the event this Agreement is terminated under any
circumstances other than those set forth in the immediately preceding clause
(a), the Escrow Deposit and the interest accrued thereon shall be paid or
returned to Buyer.
3.3 Proration of Income and Expenses.
3.3.1. Except as otherwise provided herein, all deposits,
reserves and prepaid and deferred income and expenses relating to the Stations
Assets or the Assumed Liabilities and arising from the conduct of the business
and operations of the Stations shall be prorated between Buyer and Seller in
accordance with generally accepted accounting principles as of 11:59 p.m.
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local Arizona time, on the date immediately preceding the Closing Date. Such
prorations shall include, without limitation, all ad valorem, real estate,
property taxes and other governmental charges on the Stations Assets (but
excluding taxes arising by reason of the transfer of the Stations Assets as
contemplated hereby which shall be paid as set forth in Section 13.2), business
and license fees, 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 pay, amounts due or to become due under Contracts, rents and
similar prepaid and deferred items.
3.3.2 Except as otherwise provided herein, the prorations and
adjustments contemplated by this Section 3.3, to the extent practicable, shall
be made on the Closing Date. As to those prorations and adjustments not capable
of being ascertained on the Closing Date, an adjustment and proration shall be
made within sixty (60) calendar days after the Closing Date.
3.3.3 In the event of any disputes between the parties as to
such adjustments, the amounts not in dispute shall nonetheless be paid at the
time provided in Section 3.3.2 and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the parties, and
the fees and expenses of such accountant shall be paid one-half by Seller and
one-half by Buyer.
3.4 Allocation of Purchase Price. The parties have agreed upon an
allocation of the Purchase Price among the Stations Assets, and the Agreement
Not to Compete, as attached to this Agreement as Exhibit C. Seller and Buyer
agree to use the agreed upon allocation, if any, for all tax purposes, including
without limitation, those matters subject to Section 1060 of the Internal
Revenue Code of 1986, as amended.
3.5 Adjustment for Barter. As of the Closing Date, Buyer 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 by more than $10,000 the aggregate net value of
the Stations' Barter Receivable (as defined below) as of the Closing Date.
"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.
3.6 Agreement Not to Compete. At the Closing, Buyer and Seller shall
enter into an Agreement Not to Compete, substantially in the form attached
hereto as Exhibit D (the "Agreement Not to Compete"). The Agreement Not to
Compete shall provide that Seller shall not compete with Buyer in the radio
business in the Cottonwood, Prescott and Flagstaff, Arizona markets for a period
of three (3) years after the Closing; provided, however, Seller shall not be
restricted by the Agreement Not to Compete from being involved in the radio
business in the Phoenix, Arizona market.
3.7 Accounts Receivable. Buyer acknowledges that all accounts
receivable arising
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prior to the Closing Date in connection with the operation of the Stations,
including but not limited to accounts receivable for advertising revenues for
programs and announcements performed prior to the Closing Date, shall remain the
property of RBF ("Seller Accounts Receivable") and that Buyer shall not acquire
any beneficial right or interest therein or responsibility therefor under this
Agreement. For a period of one hundred twenty (120) days following the Closing
Date (the "Collection Period"), Buyer shall for no remuneration use
substantially the same efforts to collect the Seller Accounts Receivable as
Buyer uses to collect Buyer's own accounts receivable in the normal and ordinary
course of business, and Buyer will apply all such amounts collected in
connection with the Seller Accounts Receivable collected in connection with the
Seller Accounts Receivable to the debtor's oldest account receivable first,
except that any such accounts collected by Buyer who are also indebted to Buyer
for programs and announcements broadcast on any of the Stations may be applied
to Buyer's account if so directed by the debtor or under circumstances in which
there is a bona fide dispute between RBF and such account debtor with respect to
such account. Buyer's obligation and authority shall not extend to the
institution of litigation, employment of counsel or a collection agency or any
other extraordinary means of collection. Buyer agrees to reasonably cooperate
with RBF, at RBF's expense, as to any litigation or other collection efforts
instituted by RBF to collect any delinquent Seller Accounts Receivable. During
the Collection Period, neither Seller nor its agents shall make any direct
solicitation of any account debtor for collection purposes or institute
litigation for the collection of amounts due. Any amounts relating to the Seller
Accounts Receivable that are paid directly to Seller shall be retained by
Seller, but Seller shall provide Buyer with prompt notice of any such payment.
Except as otherwise provided herein, amounts collected by Buyer on account of
Seller Accounts Receivable shall be remitted in full to RBF on a monthly basis,
by the fifteenth (15) day of the month following the month for which remittance
is due. Buyer shall deliver to RBF an accounting showing the amount it received
during each period on each account. At the conclusion of the Collection Period
and after remittance of all amounts collected, Buyer will thereafter have no
further responsibility with respect to the collection of the Seller Accounts
Receivable, and Buyer may apply all collections received by Buyer from any party
who continues business with Buyer to obligations owing to Buyer, except for any
payment received by Buyer which such party specifies is for amounts owed to RBF,
in which event such specified amounts shall be paid over to RBF. Buyer shall not
have the right to compromise, settle or adjust the amounts of any one of the
Seller Accounts Receivable without RBF's prior written consent. RBF shall
promptly pay all sales commissions relating to all of its accounts receivable
whenever RBF receives payment thereon.
ARTICLE 4
CLOSING
4.1 Closing. Except as otherwise mutually agreed upon by Buyer and
Seller, the consummation of the transactions contemplated herein (the "Closing")
shall occur within ten (10) business days after the later to occur of (a) the
satisfaction or waiver of each condition to closing contained herein, other than
such conditions as are reasonably anticipated to be satisfied at Closing
(provided that each party hereto shall use its reasonable best efforts to cause
each condition to closing to be satisfied so that the Closing may occur at the
earliest possible date); and (b) the issuance of the Final Order (as defined
below), or such other date as may be mutually
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agreed by the parties hereto (the "Closing Date"); provided, however, that
unless Seller's senior lenders object Buyer may in its sole discretion waive the
requirement that a Final Order be issued and elect (subject to clause (a) above)
to close at any time (upon not less than ten (10) business days' notice to
Seller) after the release of initial FCC approval on public notice that it has
consented to the transaction contemplated hereby (the "Initial Approval"). For
purposes of this Agreement, "Final Order" (and "Final") means an order or grant
by the FCC which is no longer subject to reconsideration or review by the FCC or
a court of competent jurisdiction and pursuant to which the FCC consents, as the
case may be, to the assignments of the FCC Licenses contemplated by this
Agreement or to the renewal of the FCC Licenses, each such order or grant being
without the imposition of any conditions adverse to Buyer or any Affiliate (as
hereinafter defined) of Buyer with respect to the assignment of the FCC Licenses
to Buyer or the continued operation by Buyer of the Stations or the Stations
Assets. In the event that the parties close before the Initial Approval has
become a Final Order, the parties shall enter into an Unwind Agreement mutually
acceptable to the parties and their respective senior lenders. The Closing shall
be held in the offices of Buyer's counsel in Flagstaff, Arizona, or at such
place and in such manner as the parties hereto may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
5.1 FCC Consent. It is specifically understood and agreed by Buyer and
Seller that the Closing and the assignment of the Stations Licenses and the
transfer of the Stations Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC without the imposition of any
conditions adverse to Buyer or any Affiliate of Buyer (the "FCC Consent").
5.2 FCC Application. Within five (5) business days after the execution
of this Agreement, Buyer and RLF shall file an application with the FCC for the
FCC Consent (the "FCC Application"). Buyer and RLF shall prosecute the FCC
Application with all reasonable diligence and otherwise use their best efforts
to obtain the FCC Consent as expeditiously as practicable (but neither Buyer nor
RLF shall have any obligation to satisfy complainants or the FCC by taking any
steps which would have a material adverse effect upon Buyer or RLF or upon any
of their respective Affiliates). If the FCC Consent imposes any condition on
Buyer or RLF or any of their respective Affiliates, such party shall use its
best efforts to comply with such condition; provided, however, that neither
Buyer nor RLF shall be required hereunder to comply with any condition that
would have a material adverse effect upon it or any of its Affiliates. If
reconsideration or judicial review is sought with respect to the FCC Consent,
the party affected shall vigorously oppose such efforts for reconsideration or
judicial review; provided, however, that nothing herein shall be construed to
limit either party's right to terminate this Agreement pursuant to Article 16
hereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to
Seller, each of which
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is true and correct on the date hereof, shall survive the Closing and shall be
unaffected by any investigation heretofore or hereafter made by Seller:
6.1 Organization and Standing. Buyer is a corporation duly organized
and validly existing under the laws of the State of Arizona.
6.2 Authorization and Binding Obligations. Buyer has all necessary
legal power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Stations Assets and to
carry on the business of the Stations upon the consummation of the transactions
contemplated by this Agreement. Buyer's execution, delivery and performance of
this Agreement and the transactions contemplated hereby have been duly and
validly authorized by all necessary action on its part and, assuming the due
authorization, execution and delivery of this Agreement by Seller, this
Agreement will constitute the legal, valid and binding obligation of Buyer,
enforceable against it in accordance with its terms, except as limited by laws
affecting creditors' rights or equitable principles generally.
6.3 Qualification As Assignee. To the best of Buyer's knowledge, there
are no facts which, under the Communications Act of 1934, as amended, or the
existing rules and regulations of the FCC, would disqualify Buyer as an assignee
of the Stations Licenses. Buyer has, and will continue to have to the Closing,
funds committed and readily available to it sufficient to pay all amounts due at
the Closing, as evidenced by the documentation set forth in Schedule 6.3.
6.4 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 hereof with respect to governmental consents, the
execution, delivery and performance of this Agreement by Buyer: (a) do not
conflict with the provisions of the articles of organization or operating
agreement of Buyer; (b) do not require the consent of any third party; (c) will
not violate any applicable law, judgment, order, injunction, decree, rule,
regulation or ruling of any governmental authority to which Buyer or any of its
affiliates is a party; and (d) will not, either alone or with the giving of
notice or the passage of time, or both, conflict with, constitute grounds for
termination of or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any agreement, instrument, license or permit to
which Buyer is now subject.
6.5 Commissions or Finder's Fees. Neither Buyer nor any person or
entity acting on behalf of Buyer has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto
to any person or entity.
6.6 Litigation. Buyer is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree prohibiting the consummation of
the transactions contemplated by this Agreement, and there are no suits, legal
proceedings or investigations of any nature pending, or to the best knowledge of
Buyer, threatened against or affecting Buyer that would affect Buyer's ability
to carry out the transactions contemplated by this Agreement.
6.7 Full Disclosure. No representation or warranty made by Buyer
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by
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Buyer pursuant hereto contains or will contain any untrue statement of a
material fact, or omits or shall omit to state any material fact required to
make any statement contained herein or therein not misleading. To the best of
Buyer's knowledge, there is no impending or contemplated event or occurrence
that would cause any of the foregoing representations not to be true and
complete on the date of such event or occurrence as if made on that date.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Buyer,
each of which is true and correct on the date hereof, shall survive the Closing
and shall be unaffected by any investigation heretofore or hereafter made by
Buyer:
7.1 Organization and Standing. Each of RBF and RLF is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, RBF is authorized to conduct business within the State of
Arizona, and each of RBF and RLF has the requisite power and authority to own,
lease and operate the Stations Assets owned or leased by it and to carry on the
business of the Stations as now being conducted by it and as proposed to be
conducted by it between the date hereof and the Closing Date.
7.2 Authorization and Binding Obligation. Seller has the power and
authority, and has taken all necessary and proper action to enter into and
perform this Agreement and to consummate the actions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Seller and,
assuming the due authorization, execution and delivery of this Agreement by
Buyer, constitutes the legal, valid and binding obligation of Seller enforceable
against it in accordance with its terms, except as limited by laws affecting the
enforcement of creditors' rights or equitable principles generally.
7.3 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 with respect to governmental consents and in Schedule 7.9
with respect to required consents, the execution, delivery and performance of
this Agreement by Seller: (a) do not require the consent of any third party
(including, without limitation, the consent of any governmental, regulatory,
administrative or similar authority); (b) will not conflict with, result in a
breach of, or constitute a violation of or default under, the provisions of
Seller's certificate of organization or bylaws, or any applicable law, judgment,
order, injunction, decree, rule, regulation or ruling of any governmental
authority to which Seller is a party or by which Seller or any of the Stations
Assets are bound; (c) will not either alone or with the giving of notice or the
passage of time, or both, conflict with, constitute grounds for termination of
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, any Contract, agreement, instrument, license or permit to which
Seller or any of the Stations Assets is now subject; and (d) will not result in
the creation of any lien, charge or encumbrance on any of the Stations Assets.
7.4 Government Authorizations.
7.4.1 Schedule 7.4 hereto contains a true and complete list of
the Stations
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Licenses which are required for the lawful conduct of the business and
operations of the Stations in the manner and to the full extent they are
presently conducted (including, without limitation, auxiliary licenses
associated with each Station and all tower registrations), except for such
licenses, permits and authorizations the failure of which to obtain would not
have a material adverse effect on Buyer or the Stations. Seller has delivered to
Buyer true and complete copies of the Stations Licenses listed in Schedule 7.4,
including any and all amendments and other modifications thereto.
7.4.2 RLF is the authorized legal holder of the Stations
Licenses. Except as set forth Schedule 7.4, none of the Stations Licenses is
subject to any restrictions or conditions which would materially limit the full
operation of the Stations as now operated.
7.4.3 Except as set forth in Schedule 7.4, and except for
matters affecting the radio broadcast industry generally, there are no
complaints, petitions or proceedings pending or, to the best of Seller's
knowledge, threatened as of the date hereof before the FCC or any other
governmental or regulatory authority relating to the business or operations of
the Stations. Except as set forth on Schedule 7.4, there are no applications
pending by RLF before the FCC. Except as set forth in Schedule 7.4, the Stations
Licenses are in good standing, are in full force and effect and are unimpaired
by any act or omission of Seller or its directors, officers, or employees, and
the operations of the Stations are in accordance with the Stations Licenses.
Except as set forth on Schedule 7.4, no proceedings are pending or, to the best
of Seller's knowledge, threatened, and to the best of Seller's knowledge there
has not been any act or omission of Seller or any of its directors, officers, or
employees, which may result in the revocation, modification, non-renewal or
suspension of any of the Stations Licenses, the denial of any pending
applications, the issuance of any cease and desist order, the imposition of any
administrative actions by the FCC or any other governmental or regulatory
authority with respect to the Stations Licenses or which may affect Buyer's
ability to continue to operate the Stations as they are currently operated.
7.4.4 Except as set forth on Schedule 7.4, each Station is
operating with the maximum facilities specified in the respective Station
License.
7.4.5 To the best of Seller's knowledge: (i) none of the
Stations is causing objectionable interference to the transmissions of any other
broadcast station or communications facility nor has any of the Stations
received any complaints with respect thereto; and (ii) no other broadcast
station or communications facility is causing objectionable interference to
respective transmissions of either Station.
7.4.6 Seller has no reason to believe that the Stations
Licenses will not be renewed in their ordinary course.
7.4.7 All reports, forms, and statements required to be filed
by RLF with the FCC with respect to the Stations since the grant of the last
renewal of the Stations Licenses have been filed and are substantially complete
and accurate.
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7.4.8 To the best knowledge of Seller, there are no facts
which, under the Communications Act of 1934, as amended, or the existing rules
and regulations of the FCC, would disqualify RLF as assignor of the Stations
Licenses or cause the Stations Licenses not to be renewed in their ordinary
course.
7.4.9 As if the Closing Date, the operation of the Stations
and all of the Stations Assets will be in compliance in all respects with ANSI
Radiation Standards C95.1-1992.
7.5 Compliance with FCC Regulations. Except as specified in Schedule
7.4, the operation of the Stations and all of the Stations Assets are in
compliance in all material respects with: (a) all applicable engineering
standards required to be met under applicable FCC rules; and (b) all other
applicable federal, state and local rules, regulations, requirements and
policies, including, but not limited to, equal employment opportunity policies
of the FCC, and all applicable painting and lighting requirements of the FCC and
the Federal Aviation Administration to the extent required to be met under
applicable FCC rules and regulations, and to the best of Seller's knowledge,
there are no filed claims to the contrary.
7.6 Taxes. Seller has filed all federal, state, local and foreign
income, franchise, sales, use, property, excise, payroll and other tax returns
required by law to be filed by it and has paid in full all taxes, estimated
taxes, interest, assessments, and penalties due and payable by it. All returns
and forms which have been filed have been true and correct in all material
respects and no tax or other payment in an amount other than as shown on such
returns and forms is required to be paid by Seller and has not been paid by
Seller. There are no present disputes as to taxes of any nature payable by
Seller which in any event could adversely affect any of the Stations Assets or
the operation of the Stations by Buyer. Seller has not been advised that any of
its tax returns, federal, state, local or foreign, have been or are being
audited. Seller does not and will not in the future have any liability, fixed or
contingent, for any unpaid federal, state or local taxes or other governmental
or regulatory charges whatsoever (including without limitation withholding and
payroll taxes) which could result in a lien on the Stations Assets after
conveyance thereof to Buyer or in any other form of transferee liability to
Buyer.
7.7 Personal Property. Schedule 7.7 hereto contains a list of all
material items of tangible personal property owned by RBF and used in the
conduct of the business and operations of the Stations. Schedule 7.7, also
separately lists any material tangible personal property leased by RBF pursuant
to leases included within the Contracts. Except as disclosed in Schedule 7.7 RBF
has, and following the Closing, Buyer will have, good and marketable title to
all of the items of tangible personal property which are included in the
Stations Assets (other than those subject to lease) and, except as set forth in
Schedule 7.7, all of which will be paid at or prior to Closing, none of such
Stations Assets is, or at the Closing will be, subject to any security interest,
mortgage, pledge, lease, license, lien, encumbrance, title defect or other
charge, except for liens for taxes not yet due and payable, and except for the
Assumed Liabilities ("Permitted Encumbrances"). The properties listed in
Schedule 7.7, along with those properties subject to lease and included among
the Contracts, constitute all material tangible personal property necessary to
operate the Stations as the same are now being operated. Except as set forth in
Schedule 7.7, all items of tangible personal property included in the Stations'
Assets are in good
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operating condition and repair (ordinary wear and tear excepted), are free from
all material defect and damage, are suitable for the purposes for which they are
now being used, and have been properly maintained by Seller in a manner
consistent with generally accepted standards of good engineering practice.
7.8 Real Property.
7.8.1 Seller owns no real property. Schedule 7.8 hereto
contains a complete and accurate list and description of all real property
(including without limitation, real property relating to the towers,
transmitters, studio sites and offices of the Stations) leased by RBF and used
by RBF in connection with the operations of the Stations (the "Leased Real
Estate"). The KZGL office lease in Prescott, AZ with Adolph Bulleri, et al. is
on a month-to-month basis.
7.8.2 RBF enjoys quiet possession of all Leased Real Estate.
There are no present disputes or claims with respect to offsets or defenses by
any party against the other under any of the Contracts relating to the Leased
Real Estate. Seller has delivered to Buyer true and complete copies of all
Contracts relating to the Leased Real Estate. Except as set forth in Schedule
7.9 hereto, the assignment of the Contracts relating to the Leased Real Estate
to Buyer will not permit the other party to accelerate the rent, cause the terms
thereof to be renegotiated or constitute a default thereunder, and will not
require the consent of any such party to the assignment thereof to Buyer.
7.8.3 Except as described in Schedule 7.8, to the best of
Seller's knowledge none of the buildings, structures, improvements or fixtures
constructed on any Leased Real Estate, in connection with the operation of the
Stations, including, but not limited to, all towers, guy wires and guy anchors
and ground radials, encroach upon adjoining real property, and all such
buildings, structures, improvements and fixtures are constructed and are
operated and used in conformance with all "set back" lines, easements,
covenants, restrictions and all applicable building, fire, zoning, health and
safety laws and codes. To the best of Seller's knowledge, no utility lines
serving such Leased Real Estate pass over the lands of a third party except
where appropriate easements have been obtained. To the best of Seller's
knowledge, except as described in Schedule 7.8, all buildings, structures,
towers, antennae, improvements and fixtures situated on the Leased Real Estate
are in good and technically sound operating condition, ordinary wear and tear
excepted, have no latent structural mechanical or other defects of material
significance, are reasonably suitable for the purposes for which they are being
used and each has adequate rights of ingress and egress, utility service for
water and sewer, telephone, electric and/or gas, and sanitary service for the
conduct of the business and operations of the Stations as presently conducted.
There is no pending or, to the best knowledge of Seller, threatened condemnation
or other legal proceeding or action of any kind relating to such real property
and/or title thereto.
7.9 Contracts. Schedule 7.9 lists all Contracts to which Seller is a
party, or which are binding on Seller, as of the date of this Agreement, except
for contracts which are not to be assumed by or assigned to Buyer. Those
Contracts listed on Schedule 7.9, if any, requiring the consent of a third party
to assignment are identified by an asterisk in the left margin of Schedule 7.9.
Those Contracts, if any, that Seller and Buyer have agreed are material to the
operation of
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the Stations Assets and the valid assignment of which and receipt by Buyer of
consents thereto (along with appropriate estoppel certificates for the leases
related to the Leased Real Estate) is a condition to the consummation of the
transactions contemplated hereby (the "Fundamental Contracts") are identified by
an "F" in the left margin of Schedule 7.9.
7.10 Status of Contracts, etc. Seller has delivered to Buyer true and
complete copies of all material written Contracts and true and complete
memoranda of all material oral Contracts, including any and all amendments and
other modifications thereto. All of such material Contracts are in full force
and effect and are valid, binding and enforceable in accordance with their
respective terms, except as limited by laws affecting creditors' rights or
equitable principles generally. Seller has complied in all respects with all
material Contracts and is not in default beyond any applicable grace periods
under any thereof and, to the best of Seller's knowledge, no other contracting
party is in default under any thereof.
7.11 Environmental. To the best of Seller's knowledge, except as set
forth in Schedule 7.11, Seller has complied with all federal, state and local
environmental laws, rules and regulations as in effect on the date hereof
applicable to each of the Stations and its operations, including but not limited
to the FCC's guidelines regarding RF radiation. To the best of Seller's
knowledge, 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.
SectionSection 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 or any predecessor of Seller in violation of applicable
laws or regulations, or are currently located in quantities in violation of
applicable laws and regulations in, on, or under or about the real property on
which the Stations Assets are situated, including without limitation the
transmitter sites, or contained in the tangible personal property included in
the Stations Assets which were placed there by Seller or any predecessor of
Seller. To the best of Seller's knowledge, the Stations Assets and RBF's use
thereof are not in violation of any Environmental Laws or any occupational,
safety and health or other applicable law now in effect. With respect to Buyer,
Seller shall be as of the Closing Date and thereafter solely responsible for all
environmental liabilities, of whatsoever kind and nature, arising out of or
attributable to the operation or ownership of the Stations Assets prior to the
Closing Date.
7.12 Intellectual Property. Schedule 7.12 hereto is a true and complete
list of all material Intellectual Property applied for, registered or issued to,
and owned by RBF or under which RBF is a licensee and which is used in the
conduct of Seller's business and operations, except for computer software
licensed for use by the Stations. Except as set forth on Schedule 7.12, to the
best of Seller's knowledge: (a) RBF's right, title and interest in the
Intellectual Property as owner or licensee, as applicable, is free and clear of
all liens, claims, encumbrances, rights, or equities whatsoever of any third
party and, to the extent any of the Intellectual Property
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is licensed to RBF, such interest is valid and uncontested by the licensor
thereof or any third party; (b) all computer software located at the Stations'
facilities or used in the Stations' business or operations is properly licensed
to RBF, and all of RBF's uses of such computer software are authorized under
such licenses; (c) all of RBF's right, title and interest in and to the
Intellectual Property and computer software shall be assignable to Buyer at
Closing, and upon such assignment, Buyer shall receive complete and exclusive
right, title, and interest in and to all tangible and intangible property rights
existing in the Intellectual Property; and (d) there are no infringements or
unlawful use of such Intellectual Property by RBF in connection with RBF's
business or operations.
7.13 Financial Statements. Set forth in Schedule 7.13 are complete
copies of the income statements of RBF relating to the Stations for the
twelve-month period ended December 31, 1998, together with monthly income
statement for the Stations for the month of January 1999 (collectively, the
"Financial Statements"). The Financial Statements were prepared in accordance
with the books and records of RBF and in accordance with generally accepted
accounting principles consistently applied and maintained throughout the periods
indicated except for the absence of footnotes and customary year-end adjustments
and as has been disclosed in Schedule 7.13. The Financial Statements present
fairly the results of operations of the Stations for the periods indicated. None
of the Financial Statements understates the true costs and expenses of
conducting the business and operations of the Stations, fails to disclose any
material liability, or inflates (or will inflate) the revenues of the Stations
for any reason.
7.14 Personnel Information.
7.14.1 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 terms of any and all agreements
affecting such persons and their employment by RBF. Seller has received no
notice that, and Seller is not aware of, any individual employee who shall or is
likely to terminate his or her employment relationship with the Stations upon
the execution of this Agreement or after the Closing.
7.14.2 Seller, with respect to the Stations, is not a party to
any contract or agreement with any labor organization, nor has Seller agreed to
recognize any union or other collective bargaining unit, nor has any union or
other collective bargaining unit been certified as representing any employees of
RBF at the Stations. Seller has no knowledge of any organization effort
currently being made or threatened by or on behalf of any labor union with
respect to employees of RBF at the Stations.
7.14.3 To the best of Seller's knowledge, except as disclosed
in Schedule 7.14, Seller, with respect to the Stations, has complied in all
material respects with all laws relating to the employment of labor, including,
without limitation, the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes.
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7.15 Litigation. Seller is not subject to any judgment, award, order,
writ, injunction, arbitration decision or decree relating to the conduct of the
business or the operation of the Stations or any of the Stations Assets, and
there is no litigation, administrative action, arbitration, proceeding or
investigation pending or, to the best knowledge of Seller, threatened against
Seller with respect to, related to or in connection with the operation of the
Stations in any federal, state or local court, or before any administrative
agency or arbitrator (including, without limitation, any proceeding which seeks
the forfeiture of, or opposes the renewal of, any of the Stations Licenses), or
before any other tribunal duly authorized to resolve disputes. In particular,
but without limiting the generality of the foregoing, to the best knowledge of
Seller, there are no applications, complaints or proceedings pending or
threatened before the FCC or any other governmental organization with respect to
the business or operations of the Stations.
7.16 Compliance With Laws. To the best of Seller's knowledge, (i)
Seller is not in material violation of, nor has Seller received any notice
asserting any non-compliance by it in connection with the operation of the
Stations or use or ownership of any of the Stations Assets with, any applicable
statute, rule or regulation, whether federal, state or local; (ii) Seller is not
in default with respect to any judgment, order, injunction or decree of any
court administrative agency or other governmental authority or any other
tribunal duly authorized to resolve disputes which relates to the transactions
contemplated hereby; and (iii) Seller is in material compliance with all laws,
regulations and governmental orders applicable to the conduct of the business
and operations of the Stations.
7.17 Employee Benefit Plans. Schedule 7.17 contains a true and complete
list as of the date of this Agreement of all employee benefit plans applicable
to the employees of RBF employed at the Stations, and a brief description
thereof. Seller does not maintain any other employee benefit plan as the term is
defined in Section 3 of the Employee Retirement Income Security Act of 1974, as
amended, applicable to the employees of RBF employed at the Stations.
7.18 Commissions or Finder's Fees. Neither Seller nor any person or
entity acting on behalf of Seller has agreed to pay a commission, finder's fee
or similar payment in connection with this Agreement or any matter related
hereto to any person or entity.
7.19 Conduct of Business in Ordinary Course: Adverse Changes. Since the
date Seller acquired the Stations, (a) Seller has conducted the business of the
Stations only in the ordinary course consistent with Seller's past practices;
(b) there has not been any material adverse change in the physical condition of
the tangible assets of the Stations, nor any damage, destruction, or physical
loss affecting any of the Stations Assets; and (c) Seller has not created,
assumed, or suffered any mortgage, pledge, lien or encumbrance on any of the
Stations Assets.
7.20 Instruments of Conveyance: Good Title. The instruments to be
executed by Seller and delivered to Buyer at the Closing, conveying the Stations
Assets to Buyer, will transfer good and marketable title to the Assets free and
clear of all liabilities (absolute or contingent), security interests,
mortgages, pledges, liens, obligations and encumbrances, except for Permitted
Encumbrances and except as set forth in Schedule 7.4, Schedule 7.7 and Schedule
7.8 hereto and
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those obligations referred to in the first sentence of Section 2.1 hereof.
7.21 Undisclosed Liabilities. Excepting only for the Assumed
Liabilities, no liability or obligation of any nature, whether accrued,
absolute, contingent or otherwise, relating to Seller, the Stations or the
Stations Assets exists which could, after discharging any indebtedness therefor
at or prior to the Closing, result in any form of transferee liability against
Buyer or subject the Stations Assets to any lien, encumbrance, claim, charge,
security interest or imposition whatsoever or otherwise affect the full, free
and unencumbered use of the Stations Assets by Buyer.
7.22 Full Disclosure. No representation or warranty made by Seller
contained in this Agreement nor any certificate, document or other instrument
furnished or to be furnished by Seller pursuant hereto contains or will contain
any untrue statement of a material fact, or omits or shall omit to state any
material fact required to make any statement contained herein or therein not
misleading. To the best of Seller's knowledge, there is no impending or
contemplated event or occurrence that would cause any of the foregoing
representations not to be true and complete on the date of such event or
occurrence as if made on that date.
Whenever in this Article 7 a warranty or representation is qualified by
a word or phrase referring to the best of Seller's knowledge (or similar terms),
it shall mean to the actual knowledge of Terry S. Jacobs, William L. Stakelin,
David Remund (Seller's engineer), and Jay Mlazgar (Seller's General Manager),
after having made due inquiry of the employees, representatives and agents of
Seller who would be expected to have knowledge of the matter, and with respect
to the condition of any Stations Assets, records or other object, after having
inspected it.
ARTICLE 8
COVENANTS OF BUYER
8.1 Closing. Subject to Article 11 hereof, on the Closing Date, Buyer
shall purchase the Stations Assets from Seller as provided in Article I hereof
and shall assume the Assumed Liabilities of Seller as provided in Article 2
hereof.
8.2 Notification. Buyer will provide Seller prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 6. Buyer shall also notify Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated hereby.
8.3 No Inconsistent Action. Buyer shall not take any action which is
materially inconsistent with its obligations under this Agreement or take any
action which would cause any representation or warranty of Buyer contained
herein to be or become false or invalid or which could hinder or delay the
consummation of the transactions contemplated by this Agreement.
8.4 Removal of Impediments. Should any fact relating to Buyer which
would cause the FCC to deny its consent to the transactions contemplated by this
Agreement come to Buyer's
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attention, Buyer will promptly notify Seller thereof and will use its reasonable
efforts to take such steps as may be necessary to remove any such impediment to
the FCC's consent to the transactions contemplated by this Agreement.
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 Buyer, Seller
shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the
Stations in the ordinary and prudent course of business consistent with past
practice and with the intent of preserving the ongoing operations and assets of
the Stations, including but not limited to maintaining the independent identity
of the Stations.
9.1.2 Seller shall use its reasonable best efforts to: (i)
preserve the operation of the Stations intact; (ii) preserve the business of the
Stations' advertisers, customers, suppliers and others having business relations
with the Stations; and (iii) continue to conduct financial operations of the
Stations, including without limitation, their credit and collection and pricing
policies and practices, all in the ordinary course of business consistent with
past practices, and, without limiting the generality of the foregoing, Seller
shall not discount its accounts receivable, accelerate its efforts to collect
accounts receivable or take any other action or use any other collection method
not regularly taken or used by it in the ordinary course of business prior to
the date of this Agreement.
9.1.3 Except for conditions described in Schedule 7.4, Seller
shall operate the Stations in all respects in accordance with FCC rules and
regulations and the Stations Licenses and with all other laws, regulations,
rules and orders, and shall not cause or permit by any act, or failure to act,
any of the Stations Licenses to expire, be surrendered, adversely modified, or
otherwise terminated, or the FCC to institute any proceedings for the
suspension, revocation or adverse modification of any of the Stations Licenses,
or fail to prosecute with due diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause the
FCC to deny its consent to the transactions contemplated by this Agreement come
to Seller's attention, Seller will promptly notify Buyer thereof and will use
its reasonable best efforts to take such steps as may be necessary to remove any
such impediment to the FCC's consent to the transactions contemplated by this
Agreement.
9.1.5 Except for changes or actions in the ordinary course of
business consistent with past practices, Seller shall not: (a) sell broadcast
time on a prepaid basis (other than in the course of existing credit practices);
(b) except as set forth on Schedule 7.14, or as required by applicable law or
written agreements currently in effect, grant or agree to grant any general
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increases in the rates of salaries or compensation payable to employees of the
Stations (provided that no such increase to any employee shall exceed the amount
budgeted therefor in RBF's 1999 budgets) unless such increase is as a result of
increased commissions payable to employees on account of increased advertising
sales; (c) except as required by written agreements currently in effect, grant
or agree to grant any specific bonus or increase in compensation to any
executive management employee of the Stations (provided that no such increase to
any employee shall exceed the amount budgeted therefor in RBF's 1999 budgets)
unless such bonus or increase is as a result of increased commissions payable to
employees on account of increased advertising sales or is used as an incentive
for employees to remain with the Stations up to the Closing; (d) provide for any
new pension, retirement or other employment benefits for employees of the
Stations or any increases in any existing benefits, (e) modify, change or
terminate any Contract other than in the ordinary course of business; or (f)
change the advertising rates in effect as of the date hereof other than in the
ordinary course of business.
9.1.6 Seller shall give or cause the Stations to give Buyer
and Buyer's counsel, accountants, engineers and other representatives, at
Buyer's reasonable request and upon reasonable notice, full and reasonable
access during normal business hours to all of Seller's personnel, properties,
books, Contracts, reports and records (including, without limitation, financial
information and tax returns relating to the Stations, and environmental audits
in existence with respect to the Stations Assets), real estate, buildings and
equipment relating to the Stations and to the Stations' employees, and to
furnish Buyer with information and copies of all documents and agreements
relating to the Stations and the operation thereof (including but not limited to
financial and operating data and other information concerning the financial
condition, results of operations and business of the Stations, and any
engineering materials in Seller's possession regarding the operations of the
Stations and the ability, if any, of the Stations' signals to be upgraded) that
Buyer may reasonably request. The rights of Buyer under this Section 9.1.6 shall
not be exercised in such a manner as to interfere unreasonably with the business
of the Stations.
9.1.7 Seller shall use its reasonable best efforts to obtain
any third party consents necessary for the assignment of any Contract (which
shall not require any payment to any such third party except for such amounts
contemplated by the Contract to be assigned, and any amount then owing by Seller
to such third party).
9.2 Notification. Seller will provide Buyer prompt written notice of
any change in any of the information contained in the representations and
warranties made in Article 7 or any Schedule. Seller agrees to notify Buyer of
any litigation, arbitration or administrative proceeding pending or, to the best
of its knowledge, threatened, which challenges the transactions contemplated
hereby. Seller shall promptly notify Buyer if any of the normal broadcast
transmissions of any Station are interrupted, interfered with or in any way
impaired, and shall provide Buyer with prompt written notice of the problem and
the measures being taken to correct such problem.
9.3 No Inconsistent Action. Seller shall not take any action which is
materially inconsistent with its obligations under this Agreement nor take any
action which would cause
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any representation or warranty of Seller contained herein to be or become false
or invalid or which could 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 Buyer the Stations Assets and the
Assumed Liabilities as provided in Articles 1 and 2 and Section 7.20 of this
Agreement.
9.5 Other Items. Until the Closing Date or the earlier termination of
this Agreement in accordance with the terms hereof, except with Buyer's prior
written consent, Seller shall not: (a) waive or release any right relating to
the business or operations of the Stations, except for adjustments or
settlements made in the ordinary course of business consistent with its past
practices; (b) transfer or grant any rights under any of the Stations Licenses;
(c) enter into any commitment for capital expenditures for which Buyer would
become liable after the Closing Date; (d) introduce any material changes in the
broadcast hours or in the format of the Stations or any other material change in
the Station's programming policies; (e) change the call letters of any of the
Stations; and (f) enter into any transaction or make or enter into any contract
or commitment with respect to any of the Stations or the Stations Assets which
by reason of its size or otherwise is not in the ordinary course of business
consistent with past practices.
9.6 Exclusivity. Seller agrees that, commencing on the date hereof
through the Closing or earlier termination of this Agreement, Buyer shall have
the exclusive right to consummate the transactions contemplated herein, and
during such exclusive period, Seller agrees that neither Seller, nor any
director, officer, employee or other representative of Seller: (a) will
initiate, solicit or encourage, directly or indirectly, any inquiries, or the
making or implementation of any proposal or offer with respect to a merger,
acquisition, consolidation or similar transaction involving, or any purchase of,
all or any portion of the Stations Assets (any such inquiry, proposal or offer
being hereinafter referred to as an "Acquisition Proposal" and any such
transaction being hereinafter referred to as an "Acquisition"); (b) will engage
in any negotiations concerning, or provide any confidential information or data
to, or have any discussions with, any person relating to an Acquisition
Proposal, or otherwise facilitate any effort or attempt to make or implement an
Acquisition Proposal; or (c) will continue any existing activities, discussions
or negotiations with any parties conducted heretofore with respect to any
Acquisition Proposal or Acquisition and will take the necessary steps to inform
the individuals or entities referred to above of the obligations undertaken by
them in this Section 9.6. Notwithstanding the foregoing, in the event that Buyer
defaults in any material respect in the observance or in the due and timely
performance of any of its covenant or agreements herein contained and such
default shall not be cured within ten (10) business days of notice of default
served by Seller, Seller's obligations under this Section 9.6 shall be null and
void.
ARTICLE 10
JOINT COVENANTS
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Buyer and Seller each covenant and agree that between the date hereof
and the Closing Date, they shall act in accordance with the following:
10.1 Confidentiality. Subject to the requirements of applicable law,
Buyer and Seller shall each keep confidential all information obtained by it
with respect to the other parties hereto in connection with this Agreement and
the negotiations preceding this Agreement, and will use such information solely
in connection with the transactions contemplated by this Agreement, and if the
transactions contemplated hereby are not consummated for any reason, each shall
return to each other party hereto, without retaining a copy thereof, any
schedules, documents or other written information obtained from such other party
in connection with this Agreement and the transactions contemplated hereby.
Notwithstanding the foregoing, no party shall be required to keep confidential
or return any information which: (a) is known or available through other lawful
sources, not bound by a confidentiality agreement with the disclosing party; (b)
is or becomes publicly known through no fault of the receiving party or its
agents; (c) is required to be disclosed pursuant to an order 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.
10.2 Cooperation. Subject to express limitations contained elsewhere
herein, Buyer and Seller agree to cooperate fully with one another in taking any
reasonable actions (including without limitation, reasonable actions to obtain
the required consent of any governmental instrumentality or any third party and
to permit Buyer to take such steps as it may desire to take prior to the Closing
Date to remedy those conditions described in Schedule 7.4 as exceptions to
Seller's warranties and representations) 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. Buyer shall not, directly or indirectly,
control, supervise or direct the operations of the Stations prior to the
Closing. Such operations, including complete control and supervision of all
Station programs, employees and policies, shall be the sole responsibility of
Seller.
10.4 Consents to Assignment. To the extent that any Contract identified
in the Schedules is not capable of being sold, assigned, transferred, delivered
or subleased without the waiver or consent of any third person (including a
government or governmental unit), or if such sale, assignment,
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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 Buyer of the Contracts, this Agreement and any assignment executed
pursuant hereto, to the extent permitted by law, shall constitute an equitable
assignment by Seller to Buyer of all of Seller's rights, benefits, title and
interest in and to the Contracts, and where necessary or appropriate, Buyer
shall be deemed to be Seller's agent for the purpose of completing, fulfilling
and discharging all of Seller's rights and liabilities arising after the Closing
Date under such Contracts. Seller shall use its reasonable best efforts to
provide Buyer with the financial and business benefits of such Contracts
(including, without limitation, permitting Buyer to enforce any rights of Seller
arising under such Contracts), and Buyer shall, to the extent Buyer is provided
with the benefits of such Contracts, assume, perform and in due course pay and
discharge all debts, obligations and liabilities of Seller under such Contracts
to the extent that Buyer was to assume those obligations pursuant to the terms
hereof.
10.5 Filings. In addition to the covenants of the parties set forth in
Article 5 hereto, as promptly as practicable after the execution of this
Agreement, Buyer and Seller shall use their reasonable best efforts to obtain,
and to cooperate with each other in obtaining, all authorizations, consents,
orders and approvals of any governmental authority that may be or become
necessary in connection with the consummation of the transactions contemplated
by this Agreement, and to take all reasonable actions to avoid the entry of any
order or decree by any governmental authority prohibiting the consummation of
the transactions contemplated hereby, including without limitation, any reports
or notifications that may be required to be filed with the FCC, and each shall
furnish to one another all such information in its possession as may be
necessary for the completion of the reports or notifications to be filed by the
other.
10.6 Bulk Sales Laws. Buyer hereby waives compliance by Seller with the
provisions of the "bulk sales" or similar laws of any state. Seller agrees to
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorney's fees) sustained by
Buyer as a result of any failure of Seller to comply with any "bulk sales" or
similar laws.
10.7 Employee Matters. RBF shall be responsible for the payment of all
compensation and accrued employee benefits payable to all employees up to the
Closing Date. RBF acknowledges and agrees that it, and not Buyer, is and shall
be solely responsible for any and all insurance, supplemental pension, deferred
compensation, retirement and any other benefits, and related costs, premiums and
claims, due, to become due, committed or otherwise promised to any person who,
as of the Closing Date is a retiree, former employee, or current employee of
RBF, relating to the period up to the Closing Date. Buyer, as a purchaser of the
Stations Assets, shall assume no employee benefit plans, programs or practices,
whether or not set forth in writing, maintained by Seller at any time.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
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The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1 Representations, Warranties and Covenants.
11.1.1 All representations and warranties of Seller made in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes (a) expressly permitted or contemplated by the terms of this
Agreement or (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 set forth in
this Agreement to be complied with and performed by Seller on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
11.1.3 Buyer shall have received a certificate, dated as of
the Closing Date, from Seller, executed by an officer of Seller to the effect
that: (a) the representations and warranties of Seller contained in this
Agreement are true and complete in all material respects on and as of the
Closing Date as if made on and as of that date, except for changes (i) expressly
permitted or contemplated by the terms of this Agreement, or (ii) in the
ordinary course of business which are not, either individually or in the
aggregate, material and adverse; and (b) Seller has complied with or performed
in all material respects all terms, covenants and conditions set forth in this
Agreement to be complied with or performed by it on or prior to the Closing
Date.
11.2 Governmental Consents. The FCC Final Approval shall have been
obtained.
11.3 Governmental Authorizations. RLF shall be the holder of the
Stations Licenses and there shall not have been any modification of any of such
Licenses which has a material adverse effect on any of the Stations or the
operations thereof. No application shall be pending for the renewal of any of
the Stations Licenses. No proceeding shall be pending which seeks, or the effect
of which reasonably could be, to revoke, cancel, fail to renew, suspend or
adversely modify any of the Stations Licenses.
11.4 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened in writing against, and no order,
decree or judgment of any court, agency or other governmental authority shall
have been rendered (and remain in effect) against, any party hereto which: (a)
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; (d) seeks material damages on account of
the consummation of any transaction contemplated hereby; or (e) is a petition of
bankruptcy by or against Seller, an assignment by Seller for the benefit of its
creditors, or other similar proceeding.
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11.5 Third-Party Consents. All Material Contracts shall be in full
force and effect on the Closing Date, and Seller shall have obtained and shall
have delivered to Buyer all appropriate third-party consents in form and
substance acceptable to Buyer (including estoppel certificates for the leases
related to the Leased Real Estate) in connection with the assignment of the
Material Contracts to Buyer.
11.6 Closing Documents. Seller shall have delivered or caused to be
delivered to Buyer, on the Closing Date, all bills of sale, general warranty
deeds, endorsements, assignments and other instruments of conveyance reasonably
satisfactory in form and substance to Buyer, effecting the sale, transfer,
assignment and conveyance of the Stations Assets to Buyer, including, without
limitation, each of the documents required to be delivered by it pursuant to
Article 14.
11.7 No Adverse Change in Physical Condition of Tangible Assets. No
material adverse change in physical condition of any of the tangible assets
included in the Station Assets, which change is caused by or arises out of any
breach by Seller of any of its representations, warranties, covenants or
agreements hereunder shall have occurred or be reasonably likely to occur.
11.8 Phase One Environmental Audit. Buyer shall have received the Phase
I environmental site assessments received by Seller related to the Stations
during calendar year 1998 (copies of which are included in Schedule 7.11), which
assessments, if Buyer requests within thirty (30) days after the date of this
Agreement, shall be recertified to Buyer in all material respects by the
environmental consultants who prepared the assessments, the cost for such
recertification to be paid by Buyer.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1 Representations, Warranties and Covenants.
12.1.1 All representations and warranties of Buyer made in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
12.1.2 All the terms, covenants and conditions set forth in
this Agreement to be complied with and performed by Buyer on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
12.1.3 Seller shall have received a certificate, dated as of
the Closing Date,
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executed by an officer of Buyer, to the effect that: (a) the representations and
warranties of Buyer contained in this Agreement are true and complete in all
material respects on and as of the Closing Date as if made on and as of that
date; and (b) Buyer has complied with or performed in all material respects all
terms, covenants and conditions to be complied with or performed by it on or
prior to the Closing Date.
12.2 Governmental Consents. The FCC Initial Approval shall have been
obtained.
12.3 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending or threatened in writing against, and no other
decree or judgment of any court, agency or other governmental authority shall
have been rendered (and remain in effect) against, any party hereto which: (a)
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms; (b) questions the
validity or legality of any transaction contemplated hereby; (c) seeks to enjoin
any transaction contemplated hereby; or (d) seeks material damages on account of
the consummation of any transaction contemplated hereby.
12.4 Closing Documents. Buyer shall have delivered or caused to be
delivered to Seller, on the Closing Date, the Purchase Price and each of the
documents required to be delivered by it pursuant to Article 14.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
13.1 Expenses. Except as set forth in Section 13.2 hereof or otherwise
expressly set forth in this Agreement, each party hereto shall be solely
responsible for all costs and expenses incurred by it in connection with the
negotiation, preparation and performance of and compliance with the terms of
this Agreement including, but not limited to, the costs and expenses incurred
pursuant to Article 5 hereof and the fees and disbursements of counsel and other
advisors.
13.2 Specific Charges. All costs of transferring the Stations Assets in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be shall be paid by
Seller. Each party shall pay any filing or grant fees imposed upon it by any
governmental authority the consent of which or the filing with which is required
for the consummation of the transactions contemplated hereby, with the exception
of filing fees of the FCC which shall be shared equally by Buyer and Seller.
ARTICLE 14
DOCUMENTS TO BE DELIVERED AT CLOSING
14.1 Seller's Documents. At the Closing, Seller shall deliver or cause
to be delivered to Buyer the following:
14.1.1 Certified resolutions of the directors and sole
shareholder of Seller approving the execution and delivery of this Agreement and
authorizing the consummation of the
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transactions contemplated hereby;
14.1.2 A certificate of Seller, dated the Closing Date, in the
form described in Section 11.1.3;
14.1.3 Governmental certificates showing that (a) each of RBF
and RLF is duly organized, validly existing and in good standing in the State of
Delaware, (b) RBF is qualified to transact business and in good standing in the
State of Arizona; and (c) each of RBF and RLF has filed all returns, paid all
taxes due' thereon and is currently subject to no assessment, each certified as
of a date not more than thirty (30) days before the Closing Date;
14.1.4 Such certificates, bills of sale, general warranty
deeds, assignments, documents of title and other instruments of conveyance,
assignment and transfer (including without limitation any necessary consents to
conveyance, assignment or transfer required to be delivered hereunder), and lien
releases, all in form satisfactory to Buyer and Buyer's counsel, as shall be
effective to vest in Buyer good and marketable title in and to the Stations
Assets, free, clear and unencumbered except for Permitted Encumbrances, if any,
as set forth on Schedule 7.7 and Schedule 7.8.
14.1.5 An Assignment and Assumption Agreement in the form of
Exhibit E effectuating the assignment and assumption of the Assumed Liabilities
(the "Assignment and Assumption Agreement");
14.1.6 The Indemnification Escrow Agreement;
14.1.7 At the time and place of Closing, originals and all
copies of all program, operations, transmission or maintenance logs and all
other records required to be maintained by the FCC with respect to the Stations,
including the public files of the Stations, shall be left at the Stations and
thereby delivered to Buyer;
14.1.8 A written opinion of Seller's corporate counsel
substantially in the form attached as Exhibit F, dated as of the Closing Date
(provided, as to matters of Arizona law, such counsel may rely on or deliver a
separate opinion of Arizona counsel);
14.1.9 A written opinion of Seller's FCC counsel confirming
the matters set forth in Exhibit G, dated as of the Closing Date;
14.1.10 The Agreement Not to Compete; and
14.1.11 Such additional information, materials, agreements,
documents and instruments as Buyer and its counsel may reasonably request in
order to consummate the Closing.
14.2 Buyer's Documents. At the Closing, Buyer shall deliver or cause to
be delivered to Seller the following:
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14.2.1 Certified resolutions of the directors of Buyer
approving the execution and delivery of this Agreement and authorizing the
consummation of the transactions contemplated hereby;
14.2.2 A certificate of Buyer, dated the Closing Date, in the
form described in Section 12.1.3;
14.2.3 The Assignment and Assumption Agreement;
14.2.4 The Indemnification Escrow Agreement;
14.2.5 A written opinion of Buyer's counsel in the form
attached as Exhibit H, dated as of the Closing Date;
14.2.6 The Purchase Price in accordance with Section 3. 1
hereof;
14.2.7 The Agreement Not to Compete; and
14.2.8 Such additional information, materials, agreement,
documents and instruments as Seller and its counsel may reasonably request in
order to consummate the Closing.
ARTICLE 15
SURVIVAL, INDEMNIFICATION. ETC.
15.1 Survival of Representations, Etc. It is the express intention and
agreement of the parties to this Agreement that all covenants and agreements
(together, "Agreements") and all representations and warranties (together,
"Warranties") made by Buyer and Seller in this Agreement shall survive the
Closing (regardless of any knowledge, investigation, audit or inspection at any
time made by or on behalf of Buyer or Seller) as follows:
15.1.1 The Agreements shall survive the Closing for a period
from the Closing Date equal to the statute of limitations for written contracts
in Arizona.
15.1.2 The Warranties in Sections 6.2, 6.5, 7.2, the third
sentence of 7.7, 7.18 and 7.20 shall survive the Closing without limitation.
15.1.3 The Warranties in Section 7.6 or otherwise relating to
the federal, state, local or foreign tax obligations of Seller shall survive the
Closing for the period of the applicable statute of limitations plus any
extensions or waivers granted or imposed with respect thereto.
15.1.4 All other Warranties shall survive for a period of
twelve (12) months from the Closing Date.
15.1.5 The right of any party to recover Damages (as defined
in Section 15.2. 1)
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pursuant to Section 15.2 shall not be affected by the expiration of any
Warranties as set forth herein, provided that notice of the existence of any
Damages (but not necessarily the fixed amount of any such Damages) has been
given by the indemnified party to the indemnifying party prior to such
expiration.
15.1.6 Notwithstanding any provision hereof to the contrary,
there shall be no contractual time limit in which Buyer or Seller may bring any
action for actual fraud (a "Fraud Action"), regardless of whether such actual
fraud also included a breach of any Agreement or Warranty; provided, however,
that any Fraud Action must be brought within the period of the applicable
statute of limitations plus any extensions or waivers granted or imposed with
respect thereto.
15.2 Indemnification.
15.2.1 Seller shall defend, indemnify and hold harmless Buyer
from and against any and all losses, costs, damages, liabilities and expenses,
including reasonable attorneys' fees and expenses ("Damages") incurred by Buyer
arising out of or related to: (a) any breach of the Warranties given or made by
Seller in this Agreement; (b) any breach of the Agreements made by Seller in
this Agreement; (c) the Retained Liabilities; and (d) any failure of the parties
to comply with any "bulk sales" laws applicable to the transactions contemplated
hereby.
15.2.2 Buyer shall defend, indemnify and hold harmless Seller
from and against any and all Damages incurred by Seller arising out of or
related to: (a) any breach of the Warranties given or made by Buyer in this
Agreement; (b) any breach of the Agreements made by Buyer in this Agreement, and
(c) the Assumed Liabilities.
15.3 Procedures: Third Party and Direct Indemnification Claims. The
indemnified party agrees to give written notice, within thirty (30) days
following its discovery thereof, to the indemnifying party of any demand, suit,
claim or assertion of liability by third parties or other circumstances that
could give rise to an indemnification obligation hereunder against the
indemnifying party (hereinafter collectively "Claims," and individually a
"Claim"), it being understood that the failure to give such notice shall not
affect the indemnified party's right to indemnification and the indemnifying
party's obligation to indemnify as set forth in this Agreement, unless the
indemnifying party's ability to contest, defend or settle with respect to such
Claim is thereby demonstrably and materially prejudiced. The parties also agree
that any claim for Damages arising directly between the parties relating to this
Agreement may be brought at any time within the applicable survival period
specified in Section 15. 1, and that the only notice required with respect
thereto shall be as specified in Section 15.1.5.
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.
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15.3.2 In the event that the indemnifying party shall elect
not to undertake such defense or opposition, or within (10) days after notice of
any such Claim from the indemnified party shall fail to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
15.3.3 Anything in this Section 15.3 to the contrary
notwithstanding: (a) the indemnified party shall have the right, at its own cost
and expense, to participate in the defense, opposition, compromise or settlement
of the Claim; (b) the indemnifying party shall not, without the indemnified
party's written consent, settle or compromise any Claim or consent to entry of
any judgment which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim, and (c) in the event that the indemnifying
party undertakes defense of or opposition to any Claim the indemnified party, by
counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party, and their respective counsel or other
representatives, shall cooperate in good faith with respect to such Claim.
15.3.4 No undertaking of defense or opposition to a Claim
shall be construed as an acknowledgment by such party that it is liable to the
party claiming indemnification with respect to the Claim at issue or other
similar Claims.
15.3.5 No indemnified party shall be entitled to assert a
claim for indemnification under Section 15.2.1(a) or Section 15.2.2(a) unless
and then only to the extent that the aggregate damages for all such claims
exceed $25,000, and the maximum liability of either party for indemnification
under such Subsections shall be $1,000,000, except with respect to claims
relating to title, taxes, License revocation, and environmental matters (which
shall not be so limited) or as otherwise set forth in Sections 16.2, 16.3 and
16.4 hereof.
ARTICLE 16
TERMINATION RIGHTS
16.1 Termination. This Agreement may be terminated at any time prior to
Closing as follows:
16.1.1 Upon the mutual written consent of Buyer and Seller,
this Agreement may be terminated on such terms and conditions as so agreed; or
16.1.2 By written notice of Buyer to Seller if Seller breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the
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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 Buyer; or
16.1.3 By written notice of Seller to Buyer if Buyer breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Seller; or
16.1.4 By written notice of Buyer to Seller or by Seller to
Buyer if the FCC denies the FCC Application under circumstances in which Seller
is not entitled to the Escrow Deposit;
16.1.5 By written notice of Buyer to Seller, or by Seller to
Buyer, if any court of competent jurisdiction shall have issued an order, decree
or ruling (which then remains in effect) or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement, or by Buyer, if any court, legislative body or governmental or
regulatory authority has taken, or is reasonably expected to take, action that
would make the consummation of the transactions contemplated hereby inadvisable
or undesirable as determined by Buyer in its sole discretion reasonably
exercised;
16.1.6 By written notice of Buyer to Seller, or by Seller to
Buyer, if the Closing shall not have been consummated on or before September 15,
1999.
16.1.7 By written notice of Buyer to Seller if it shall become
apparent in both Seller's and Buyer's judgment reasonably exercised that any
condition to Buyer's obligation to close as set forth in Article 11 hereof will
not be satisfied on or before September 15, 1999.
16.1.8 By written notice of Buyer to Seller under the
conditions set forth in Section 9.2 hereof.
Notwithstanding the foregoing, no party hereto may effect a termination
hereof if such party is in material default or breach of this Agreement.
16.2 Liability. Except as set forth in Section 16.4 below, the
termination of this Agreement under Section 16.1 shall not relieve any party of
any liability for breach of this Agreement prior to the date of termination.
16.3 Monetary Damages. Specific Performance and Other Remedies. The
parties recognize that if Seller refuses to perform under the provisions of this
Agreement, monetary damages alone will not be adequate to compensate Buyer for
its injury. Buyer shall therefore be entitled to obtain specific performance of
the terms of this Agreement in addition to any other remedies, including but not
limited to monetary damages, that may be available to it. if any action is
brought by Buyer to enforce this Agreement, Seller shall waive the defense that
there is
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an adequate remedy at law. In the event of a default by Seller, which results in
the filing of a lawsuit for damages, specific performance, or other remedy,
Buyer shall be entitled to reimbursement by Seller of reasonable legal fees and
expenses incurred by Buyer.
16.4 Seller's Liquidated Damages. As more fully described in the
Deposit Escrow Agreement, in the event this Agreement is terminated because of
Buyer's material breach of this Agreement, and all other conditions to Closing
are at such time satisfied or waived (other than such conditions as can
reasonably be satisfied by Closing), then the Escrow Deposit shall be delivered
to Seller, and the proceeds thereof shall constitute liquidated damages. It is
understood and agreed that such liquidated damages amount represents Buyer's and
Seller's reasonable estimate of actual damages and does not constitute a
penalty. Recovery of liquidated damages shall be the sole and exclusive remedy
of Seller against Buyer for failing to consummate this Agreement as a result of
Buyer's material breach hereof, and shall be applicable regardless of the actual
amount of damages sustained and all other remedies are deemed waived by Seller.
ARTICLE 17
MISCELLANEOUS PROVISIONS
17.1 Risk of Loss. The risk of loss or damage to any of the Stations
Assets prior to the Closing Date, shall be upon Seller. Seller shall repair,
replace and restore any such damaged or lost Stations Asset to its prior
condition as soon as possible and in no event later than forty-five (45) days
following the loss or damage; provided, however, that in the event any such loss
or damage of the Stations Assets exists on the Closing Date, then
notwithstanding any other provision hereto, Buyer at its option may extend the
Closing Date for a period of up to sixty (60) days until such time as Seller
shall have repaired, replaced and restored any such damaged or lost Stations
Asset to its prior condition or deduct from the Purchase Price that amount which
Buyer and Seller reasonably determine to be sufficient to cover any such loss or
damage and close the transaction on the Closing Date.
17.2 Certain Interpretive Matters and Definitions. Unless the context
otherwise requires: (a) all references to Sections, Articles, Schedules or
Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof, (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule l2b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as amended; and (g)
all references to '$' or dollar amounts will be to lawful currency of the United
States of America.
17.3 Further Assurances. After the Closing, Seller shall from time to
time, at the request of and without further cost or expense to Buyer, execute
and deliver such other instruments of conveyance and transfer and take such
other actions as may reasonably be requested in order more effectively to
consummate the transactions contemplated hereby to vest in Buyer good and
marketable title to the Stations Assets being transferred hereunder in
accordance with the terms hereof, and Buyer shall from time to time, at the
request of and
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without further cost or expense to Seller, execute and deliver such other
instruments and take such other actions as may reasonably be requested in order
more effectively to relieve Seller of any obligations being assumed by Buyer
hereunder.
17.4 Preservation of Records. Subject to Section 10. 1 hereof, Buyer
hereby agrees that it will preserve and make available to Seller and its
attorneys and accountants (including the right to inspect and copy at Seller's
cost), during normal business hours and upon reasonable advance notice, for
three (3) years after the Closing Date, such of the books, records, files,
correspondence, memoranda and other documents referred pursuant to this
Agreement as Seller may reasonably require for the preparation of tax reports
and returns, the preparation of financial statements, or the preparation of a
response to any claim by a third party against Seller.
17.5 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Neither Buyer nor Seller may voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent of
the other; provided, however, that no such permitted assignment shall relieve
Buyer of its obligations hereunder in the event that its assignee fails to
perform the obligations delegated. All covenants, agreements, statements,
representations, warranties and indemnities in this Agreement by and on behalf
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto. In the event
Buyer finds it necessary or is required to provide to a third party a collateral
assignment of the Buyer's interest in this Agreement and/or any related
documents, Seller shall cooperate with the Buyer and any third party requesting
such assignment including but not limited to signing a consent and
acknowledgment of such assignment.
17.6 Amendments. No amendment, waiver of compliance with any provision
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
17.7 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.8 Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of Arizona, without giving effect to
the choice of law provisions thereof.
17.9 Notices. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, including by
facsimile, and shall be deemed to have been duly delivered and received on the
date of personal delivery, on the third day after deposit in the U.S. mail if
mailed by registered or certified mail, postage prepaid and return receipt
requested, on the day after delivery to a nationally recognized overnight
courier service if sent by an overnight delivery service for next morning
delivery or when dispatched by facsimile transmission (with the facsimile
transmission confirmation being deemed conclusive evidence of such dispatch) and
shall be addressed to the following addresses, or to such other address as any
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party may request, in the case of Seller, by notifying Buyer, and in the case of
Buyer, by notifying Seller:
To Buyer: Guy Christian
The Guyann Corporation
1117 West Highway 66
Flagstaff, AZ 86001
Fax: (520) 779-2988
Copy to: HALEY BADER & POTTS
4350 N. Fairfax Drive, Suite 900
Arlington, VA 22203
Attn: Theodore D. Kramer, Esq.
Fax: (703) 841-2345
To Seller: Terry S. Jacobs, Chairman
Regent Broadcasting of
Flagstaff, Inc.
50 East RiverCenter Blvd.
Suite 180
Covington, KY 41011
Fax: (606) 292-0352
Copy to: STRAUSS & TROY
2100 PNC Center
201 East Fifth Street
Cincinnati, OH 45202
Attn: Alan C. Rosser, Esq.
Fax: (513) 241-8389
17.10 First Right of Negotiation.
17.10.1 Effective upon the Closing and continuing thereafter
for a period of five (5) years, Seller and its Affiliate, Regent Communications,
Inc. ("Regent") shall have a first right to negotiate an acquisition of the
Stations and radio stations KAFF(FM), KMGN(FM) and KAFF(AM). Should Buyer or its
shareholders desire to sell substantially all of its/their interest in any of
the Stations and/or radio stations KAFF(FM), KMGN(FM) and KAFF(AM), it/they
shall notify Regent of such desire and shall provide to Regent, in writing, the
requested sale price and other material terms of such sale which are acceptable
to Buyer or its shareholders. For purposes of this Section 17.10 a sale shall
include a transfer, assignment or other disposition of substantially all of the
assets used or useful in the operation of any of the Stations and/or radio
stations KAFF(FM), KMGN(FM) and KAFF(AM) and a transfer, assignment or other
disposition, by purchase, merger or otherwise, of two-thirds (2/3rds) or more of
the outstanding voting stock of Buyer, in one transaction or in a series of
related transactions; provided, however, any pledge as collateral; gift or any
such transfer among or between the shareholders of Buyer as
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of the date of this Agreement, to or from family members of the shareholders of
Buyer as of the date of this Agreement or to charitable organizations; or in
connection with legitimate estate planning purposes shall not constitute a
transfer, assignment or other disposition. Regent shall have a period of twenty
(20) business days from its receipt of such notice in which to negotiate
exclusively with Buyer or its shareholders and to send written notice to Buyer
or the shareholders that Regent elects to acquire the assets or stock (or that
part thereof which is the subject of the proposed sale), on the terms as
negotiated or offered to Regent, in which event the parties shall then proceed
to the execution of definitive agreements with representations, warranties,
terms and conditions customary for transactions of such nature (including
conditions for physical, environmental and engineering inspections), the
satisfaction of applicable conditions, and closing pursuant to the terms offered
or negotiated. Should Regent fail to elect to acquire the assets or stock on the
terms offered or negotiated, Buyer or the shareholders shall be free to proceed
to sell to a third party in accordance with the terms offered to Regent,
provided, however, in the event the actual sale price negotiated with a third
party purchaser is less than ninety percent (90%) of the lowest price offered to
Regent, the provisions of Section 17.10.2 below shall apply.
17.10.2 In the event the sale price negotiated with a third
party purchaser is less than ninety percent (90%) of the price offered to Regent
in accordance with Section 17.10.1 above, Buyer or its shareholders, as the case
may be, shall provide written notice to Regent of such proposed sale, setting
forth all material terms and provisions of the proposed sale. Regent shall have
a period of five (5) business days after receipt of such notice to agree in
writing to purchase the assets at the same price and on the same terms and
provisions as contained in the notice and to deliver a written notice to that
effect to Buyer or its shareholders, as the case may be. If Regent does not
timely elect to exercise sale right of first refusal, Buyer or the shareholders
may consummate such sale with the third party purchaser in accordance with the
terms and provisions set forth in the notice.
17.11 Counterparts. This Agreement may be executed in one or more
counterparts and by facsimile, each of which will be deemed an original and all
of which together will constitute one and the same instrument.
17.12 No Third Party Beneficiaries. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any person
or entity other than the parties hereto and their successors or permitted
assigns any rights or remedies under or by reason of this Agreement.
17.13 Severability. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
17.14 Entire Agreement. This Agreement and the schedules and exhibits
hereto embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings relating
to the matters provided for herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
REGENT LICENSEE OF FLAGSTAFF, INC.
By: /s/
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
REGENT BROADCASTING OF FLAGSTAFF, INC.
By: /s/
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE GUYANN CORPORATION
By: /s/
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
268185_2.DOC
The following shareholders, representing in excess of sixty-six percent
(66%) of the outstanding voting stock of Buyer, hereby agree to be bound by the
provisions of Section 17.10 above.
/s/
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/s/
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