OPTION AGREEMENT
----------------
THIS OPTION AGREEMENT, made and entered into this 7th
day of July, 1995, by and among Keymarket of South Carolina, Inc,
("South Carolina"), Kerby E, Confer ("Confer") and River City
Broadcasting, L.P. ("River City"),
R E C I T A L S:
1. South Carolina is the licensee of, and owns and operates
radio stations WFBC-AM and WFBC-FM, Greenville, South Carolina and WORD-AM,
Spartanburg, South Carolina (the "Owned Stations") and is a party to that
certain Time Brokerage Agreement dated as of August 30, 1994 by and between
South Carolina and Spartan Radiocasting Company (the "LMA Agreement") and an
option Agreement dated as of August 30, 1994 by and between South Carolina and
Spartanburg Radiocasting Company (the "LMA Option Agreement") each relating to
Radio Stations WSPA-AM and WSPA-FM Spartanburg, South Carolina (the "LMA
Stations").
2. Concurrent with the execution hereof, River City
is making a loan to South Carolina pursuant to the terms of that
certain Loan Agreement between River City and South Carolina
dated of even date herewith,
3. South Carolina desires to grant to River City an option to
purchase the assets of South Carolina on the terms and conditions set forth
herein and Confer desires to grant to River City an option to purchase all of
the issued and outstanding stock of South Carolina on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the loan to
be made by River City pursuant to the Loan Agreement and the mutual covenants,
warranties, and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that:
1. Option. (a) South Carolina hereby gives, grants, transfers
and conveys unto River City, and its successors and assigns, the sole and
exclusive right, privilege and option to purchase (the "Asset Option"), on the
terms and conditions hereinafter set forth, all of the tangible and intangible
personal property, licenses, authorizations and certain leases, contracts and
agreements relating to the operation of the Owned Stations including, without
limitation, all rights under the LMA Agreement and the LMA Option Agreement (the
"Asset Option Property"), and including without limitation, that property
described below:
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(i) All of the licenses and other authorizations issued by the
Federal communications Commission (the "FCC") for the
operation of the Owned Stations;
(ii) All of the tangible personal property now existing or
hereafter acquired and used or useful in the operation of the
Owned Stations;
(iii) All of the intangible personal property now existing or
hereafter acquired, including cash and accounts receivable of
South Carolina;
(iv) The fee simple and leasehold interests in real property
of South Carolina used or useful in the operation of the Owned
Stations as specified in the Asset Purchase Agreement or the
Stock Purchase Agreement;
(v) The contracts, agreements and other leases of South
Carolina specified in the Asset Purchase Agreement or Stock
Purchase Agreement (as defined below) or which River City
elects to assume, including without limitation, the LMA
Agreement and the Option Agreement; and
(vi) Any assets of any nature owned by South Carolina and used
or useful in connection with the LMA Stations.
Should River City exercise the Asset Option, the Asset option
Property shall be assigned, transferred and conveyed by South Carolina to River
City (or its successors or assigns), by good and sufficient bill of sale and/or
other documents of transfer, all in form and substance satisfactory to River
City, free and clear of all liens, charges, encumbrances, debts, liabilities and
obligations whatsoever, other than those solely in favor of River City.
(b) Confer hereby gives, grants, transfers and
conveys unto River City, and its successors and assigns, the sole and exclusive
right, privilege and option to purchase (the "Stock option"), all of the issued
and outstanding capital stock of South Carolina all of which is described on
Exhibit A hereto (the "Stock option Property"). Should River City exercise the
Stock Option, the Stock Option Property shall be assigned, transferred and
conveyed by Confer to River City (or its successors or assigns), by good and
sufficient instruments of transfer, including stock powers executed in blank, in
form and substance satisfactory to River City, free and clear of all liens,
charges, encumbrances, debts, liabilities and obligations whatsoever, other than
those solely in favor of River City.
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(c) The consideration payable for the Asset Option
Property shall be equal to the sum of One Million Dollars ($1,000,000) plus the
cancellation of the outstanding principal amount of the loans made to South
Carolina pursuant to the loan Agreement and any accrued and unpaid interest
thereon. The consideration payable for the Stock Option property shall be equal
to the sum of One Million Dollars ($1,000,000).
2. Period of Option. The Asset Option and the Stock Option
shall be exercisable at any time during the period from and after the date
hereof, but on or prior to the date thirty (30) days after the date on which the
Federal Communications Commission ("FCC") grant of the 1995 license renewal
application for each of the Owned Stations for the full license term and such
grant has become a Final Order (as hereinafter defined); provided that in no
event may the Asset Option or Stock Option be exercised more than five years
after the date hereof. Final order means an action or order by the FCC (a) that
has not been reversed, stayed, enjoined, set aside, annulled or suspended, and
(b) with respect to which (i) no requests have been filed for administrative or
judicial review, reconsideration, appeal or stay and the FCC has not initiated a
review of such action or order on its own motion and the periods provided by
statute or FCC regulations for filing any such requests and for the FCC to set
aside the action on its own motion have expired, or (ii) in the event of review,
reconsideration or appeal, the period provided by statute or FCC regulations for
further review, reconsideration or appeal has expired. The parties hereto agree
that Buyer shall have no obligation to exercise either the Asset option or the
Stock Option, or any liability for failing to exercise either the Asset Option
or the Stock Option.
3. Exercise of Option. The parties hereto agree that within
three (3) business days after the exercise of the Asset Option, South Carolina
and River City (or its successor or assigns) shall enter into an Asset Purchase
Agreement, such document to be substantially in the form annexed hereto as
Exhibit B (the "Asset Purchase Agreement") (subject to (i) changes relating to
the name, organization and other similar matters relating to the buyer in the
event of assignment by River City; (ii), updates to the exhibits reflecting
changes since the date hereof; (iii) changes necessary to reflect inclusion of
any assets acquired as a result of the exercise, if any, of the LMA Option
Agreement; and (iv) such other changes as may be reasonably requested by River
City. In the event that River City exercises the Stock Option, River City and
Confer agree that they (or River City's successors or assigns) shall within
three (3) business days after the exercise of the Stock Option, enter into a
Stock Purchase Agreement, such document to be substantially in the form annexed
hereto as Exhibit C (the "Stock Purchase Agreement"), and subject to additional
changes of the type
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referred to in clauses (i), (ii), (iii) and (iv) of the preceding sentence,
4. Representations, Covenants and Warranties of South
Carolina. South Carolina represents, warrants, and covenants to River City as
follows:
(a) That South Carolina is now, and for so long as this
Agreement shall be in effect, will be a corporation duly organized, validly
existing, and in good standing under the laws of South Carolina.
(b) That South Carolina is now, and for so long as this
Agreement shall be in effect, will be the holder of the broadcast licenses and
other authorizations issued by the FCC and necessary for the operation of the
Owned Stations;
(c) That South Carolina does not know of, or have any
reasonable grounds to know of any:
(i) Litigation or proceeding pending or threatened
against or relating to the Owned Stations, the LMA Stations or
their respective properties or business;
(ii) Basis for any current or prospective
governmental investigation or action relative to the Owned
Stations, the LMA Stations or their respective properties or
business;
(d) That should River City exercise the Asset Option or the
Stock Option, South Carolina does not know of any facts which would cause the
Commission to deny its consent to the assignment of the Station's licenses to
River city (subject to receipt of the waiver described in Section 5 of the Asset
Purchase Agreement and Section 5 of the Stock Purchase Agreement, as
applicable); and
(e) That execution, delivery and performance of this Agreement
has been authorized by all necessary corporate action on the part of South
Carolina and does not violate, conflict with or cause a breach or default under,
any law, rule, regulation, license, agreement or contract to which South
Carolina is subject, bound or a party and this Agreement constitutes the legal,
valid and binding obligation of South Carolina, enforceable in accordance with
its terms; and
(f) That South Carolina shall not issue any additional capital
stock to any person or entity or grant any options, warrants, or other rights of
any nature to acquire capital stock.
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5. Representations, Warranties and Covenants of River City.
River City represents, warrants, and covenants to South Carolina and Confer:
That execution, delivery and performance of this Agreement
has been authorized by all necessary partnership action on the part of River
City and this Agreement and constitutes the legal, valid and binding obligation
of River City, enforceable in accordance with its terms.
6. Representations, Warranties and Covenants of Confer. Confer
represents, warrants and covenants to River City:
(a) That to his knowledge, the representations and warranties
of South Carolina made herein are true and correct;
(b) The authorized, issued and outstanding capital stock of
South Carolina is as set forth on Exhibit A hereto. Confer is the beneficial and
record owner of all of the issued and outstanding capital stock of South
Carolina. There are no outstanding options, warrants, or other rights of any
nature to relate in any manner to the right to acquire, purchase or redeem
capital stock of South Carolina; and
(c) That Confer has all necessary power, authority and
capacity to execute, deliver and perform this Agreement, that such execution,
delivery and performance does not violate, conflict with or cause a breach or
default under any law, rule, regulation, license, agreement or contract to which
Confer is subject, bound or a party and this Agreement constitutes the legal,
valid and binding obligation of Confer, enforceable in accordance with its
terms.
7. Consummation of Agreement. Subject to the express terms and
conditions of this Agreement, and without expanding such terms and conditions,
South Carolina, Confer and Buyer shall cooperate fully with each other and their
respective counsel and accountants in connection with any steps required to be
taken as part of their respective obligations under this Agreement and will each
use their respective commercially reasonable efforts to perform or fulfill all
conditions and obligations to be performed or fulfilled by them under this
Agreement so that the transactions contemplated hereby shall be consummated.
8. Memorandum. South Carolina and River City shall execute
contemporaneously herewith a memorandum briefly outlining the existence of this
Agreement, an original copy of which shall be delivered to River City for filing
in such place of records as River City shall determine.
9. Specific Performance. South Carolina and Confer acknowledge
and agree that, due to the unique nature of the
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subject matter or this Agreement, River City (and its assigns) would suffer
irreparable damages in the event of a breach of this Agreement, which damages
could not adequately be compensated except by specific performance of this
Agreement. Accordingly, without limiting any other remedy that may be available
to River city (or its successor and assigns) at law or equity, in the event of a
breach by South Carolina or Confer of this Agreement, it is agreed that River
City (or its successor and assigns) shall be entitled to temporary and permanent
injunctive relief, including, but not limited to, specific performance hereof,
without any showing of actual damage or inadequacy of legal remedy, in any
proceeding before a court of law with proper jurisdiction to hear the matter,
which may be brought to enforce this Agreement. South Carolina and Confer hereby
waive any defense that there is an adequate remedy at law for such breach of
this Agreement.
10. Confidentiality. South Carolina, Confer and River City
agree to keep confidential and to cause their respective employees, counsel,
accountants and other representatives to keep confidential, the term and
provisions of this Agreement as well as all documents and other information and
data, whether written or oral, relating to any of the other parties hereto,
furnished by any other party hereto or such party's representatives. Nothing
contained herein shall prevent any party from disclosing the terms and
provisions of this Agreement or delivering any documents, or disclosing other
information or data relating to any other party (a) in connection with any legal
proceedings to which it is a party (or otherwise pursuant to a subpoena) or
pursuant to the request of a court or governmental authority or otherwise to the
extent required by law, (b) to such party's consultants, advisors, counsel,
accountants, lenders and potential lenders, and investors or partners or
potential investors or partners, (c) by River City to any assignee or potential
assignee and such assignee or potential assignee's consultants, advisors,
counsel, accountants, lenders and Potential lenders and investors and potential
investors or partners; and (d) in connection with any filings with the FCC or
pursuant to Section 8 hereof.
11. Other Agreements, (a) So long as the Asset Option or Stock
Option may be exercised hereunder, South Carolina and Confer shall not, and
shall not permit any of their respective affiliates to, directly or indirectly
(i) solicit or encourage inquiries or offers from, or initiate or engage in
negotiations or substantive discussions with, any person or entity other than
River City (or its successor or assigns) with respect to the sale, exchange,
transfer or dispositions of the respective assets (or any portion thereof) of
South Carolina or the stock (or any portion thereof) of South Carolina; (ii)
enter into any agreement with any person or entity other than River City (or its
successor or assigns) with respect to the sale, exchange, transfer or other
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disposition of the respective assets (or any portion thereof) of South Carolina
or the stock (or any portion thereof) of South Carolina; or (iii) afford access
to the books, records or properties of South Carolina or Confer relating to the
respective assets (or any portion thereof) of South Carolina or the stock (or
any portion thereof) of South Carolina to any person or entity other than River
City (or its successor or assigns) that may be considering any commercial
arrangement involving the sale, exchange, transfer or other disposition of the
assets (or any portion thereof) of South Carolina or the stock (or any portion
thereof) of South Carolina.
(b) South Carolina and Confer shall from and after the date of
this Agreement until the earlier of the expiration of the Asset Option or the
Stock Option, as the case may be, or the consummation of the Asset Purchase
Agreement or the Stock Purchase Agreement, as the case may be, cause the
business of South Carolina to be conducted in the ordinary and usual course,
consistent with past practice and in accordance with the covenants and
agreements set forth in Articles V and VI of the Loan Agreement and shall not
take any other action that would hinder or impair the exercise of the Asset
Option or Stock Option or the purchase of the assets of South Carolina or the
purchase of the stock of South Carolina.
(c) If requested by River City, subject to and in accordance
with the terms of the LMA Option Agreement, South Carolina shall exercise its
rights under the LMA Option Agreement.
12. Expenses. Whether or not the transactions contemplated
hereby are consummated, except as otherwise expressly provided herein, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby will be paid by the party incurring such costs and expenses,
13. Further Assurances. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use all commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement,
14. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of South Carolina, Confer and
Buyer.
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15. Waiver of Compliance: Consents. Except as otherwise
provided in this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation, warranty,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 15.
16. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given when delivered personally or by
Federal Express or other comparable nationally recognized courier service
(receipt requested) or by facsimile transmission, telexed or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice; provided that notices of a change of address
shall be effective only upon receipt thereof):
To South Carolina and Confer:
-----------------------------
Keymarket Communications, Inc,
2743 Perimeter Parkway
Building 100, Suite 250
Augusta, Georgia 30909
Attention: Mr, Donald J, Alt
Telephone: (706) 855-0555
Telecopy: (706) 855-1955
Copies to:
----------
Joel B. Piassick, Esq,
Kilpatrick & Cody
1100 Peachtree Street
Suite 2800
Atlanta, Georgia 30309
Telephone: (404) 815-6527
Telecopy: (404) 815 6555
Robert F, Wright, Jr,, Esq.
2743 Perimeter Parkway
Building 100, Suite 250
Augusta, Georgia 30909
Telephone: (706) 860-1095
Telecopy: (706) 855-1955
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Mr. Richard A. Churchill
MC Partners
75 State Street
Suite 2500
Boston, Massachusetts 02109
Telephone: (617) 345-7200
Telecopy: (617) 345-7201
Bruce E. Rogoff, Esq.
Mintz, Levint, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Telephone: (617) 542-6000
Telecopy: (617) 542-2241
To Buyer:
---------
c/o River City Broadcasting, L.P.,
1215 Cole Street
St. Louis, Missouri 63106
Attention: Mr. Larry D. Marcus
Telephone: (314) 259-5700
Telecopy: (314) 259-5709
Copies to:
----------
John T. Byrnes, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Suite 500
Washington, D.C. 20037
Telephone: (202) 857-2518
Telecopy: (202) 857-2900
17. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but, except as provided for
herein, neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by South Carolina or Confer without the prior
written consent of Buyer.
The parties agree as follows:
(a) Without the consent of South Carolina or Confer,
Buyer may assign its rights and obligations under this Agreement to any other
party or parties. To the extent this Agreement is assigned by Buyer in
accordance with the terms of this Section 17 to a party that is not an Affiliate
of Buyer, upon such assignment Buyer shall have no further obligations under
this Agreement and South Carolina's and Confer's only
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recourse under this Agreement shall be against such assignee of Buyer.
(b) Except as expressly provided herein, this
Agreement is not intended to, and shall not, confer upon any other person except
the parties hereto any rights or remedies hereunder.
18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF MISSOURI (BUT NOT THE LAWS PERTAINING TO CHOICE OF LAW) AS
TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO MATTERS OF VALIDITY, CONSTRUCTION,
EFFECT, PERFORMANCE AND REMEDIES.
19. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Headings. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
21. Entire Agreement. This Agreement, including the Exhibits
hereto and the documents, delivered pursuant to the Agreement or other written
agreements referring specifically to this Agreement, embody the entire agreement
and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement. The Exhibits hereto are an integral part of this
Agreement and are incorporated by reference herein. This Agreement supersedes
all prior negotiations, agreements and understandings between the parties with
respect to the transactions contemplated by this Agreement and all letters of
intent and other writings executed prior to the date hereof relating to such
negotiations, agreements and understandings.
22. Severability, If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the greatest
extent possible.
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23. Press Releases. No press releases or other public
announcements concerning this Agreement or the transactions contemplated hereby
shall be made by any party hereto without the prior written consent of the other
party unless the first such party is legally compelled to do so.
24. Publicity. Neither South Carolina, Confer nor Buyer shall
make or issue or cause to be made or issued, any announcement (written or oral)
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of the other
party, This provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or state
governmental agency or any stock exchange, except that the party required to
make such announcement shall provide a draft copy thereof to the other party
hereto, and consult with such other party concerning the timing and content of
such announcement, before such announcement is made.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day and year first written above.
RIVER CITY BROADCASTING, L.P.
By: BETTER COMMUNICATIONS, INC.,
General Partner
By: /s/ LarryD. Marcus
--------------------------
Name: LARRY D. MARCUS
Title: VICE PRESIDENT
KEYMARKET OF SOUTH CAROLINA, INC.
By: /s/Kerby E. Confer
----------------------------
Name:
Title
/s/ Kerby E. Confer
----------------------------------
Kerby E. Confer
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EXHIBIT A
AUTHORIZED, ISSUED AND OUTSTANDING
CAPITAL STOCK OF SOUTH CAROLINA
The authorized capital stock of Keymarket of South Carolina,
Inc, consists of 100,000 shares of Common Stock, par value $1,00 per share,
1,000 shares of which are issued and outstanding and none of which are held as
treasury stock.
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EXHIBIT B TO OPTION AGREEMENT
-----------------------------
ASSET PURCHASE AGREEMENT
BY AND AMONG
RIVER CITY BROADCASTING, L.P.
AND
KEYMARKET OF SOUTH CAROLINA, INC.
---------------------, ------
TABLE OF CONTENTS
-----------------
Section 1. Assets to Be Conveyed...........................................1
Section 2. Purchase Price..................................................3
Section 3. Assumption of Liabilities.......................................3
Section 4. Representations, Covenants and Warranties
of Seller.......................................................3
Section 5. Representations, Warranties and Covenants
of Buyer........................................................5
Section 6. Adjustments.....................................................5
Section 7. Expenses........................................................5
Section 8. Obligations of the Parties Before Closing.......................6
Section 9. Contingency of Obligations of Buyer.............................6
Section 10. Contingency of Obligations of Seller............................7
Section 11. Further Closing Documents.......................................8
Section 12. Application to Commission.......................................9
Section 13. Commission Approval............................................10
Section 14. Remedies of Parties Upon Default...............................10
Section 15. Damage to Seller's Properties..................................10
Section 16. Closing........................................................11
Section 17. Notices........................................................11
Section 18. Survival.......................................................12
Section 19. Commissions....................................................13
Section 20. Further Assurances.............................................13
Section 21. Amendment and Modification.....................................13
Section 22. Waiver Of Compliance; Consents.................................13
Section 23. Assignment.....................................................14
Section 24. Governing Law..................................................14
Section 25. Counterparts...................................................14
Section 26. Headings.......................................................14
Section 27. Entire Agreement...............................................14
Section 28. Severability...................................................15
Section 29. Press Releases.................................................15
Section 30. Publicity......................................................15
Section 31. Employee Matters...............................................15
Section 32. Control of the Stations........................................17
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into this ____ day of
___________________, _______, by and between KEYMARKET OF SOUTH CAROLINA, INC.,
a South Carolina corporation ("Seller"), and RIVER CITY BROADCASTING, L.P., a
Delaware limited partnership ("Buyer").
WITNESSETH:
WHEREAS, Seller is the licensee of, and owns and operates
radio stations WFBC-AM and WFBC-FM, Greenville, South Carolina and WORD-AM,
Spartanburg,, South Carolina (the "Owned Stations") and is a party to that
certain Time Brokerage Agreement dated as of August 30, 1994 by and between
South Carolina and Spartanburg Radiocasting Company (the "LMA Agreement") and an
Option Agreement dated as of August 30, 1994 by and between South Carolina and
Spartanburg Radiocasting Company (the "LMA Option Agreement") each relating to
Radio Stations WSPA-AM and WSPA-FM Spartanburg, South Carolina (the "LMA
Stations"). The Owned Stations and the LMA Stations are individually referred to
herein as a "Station" and collectively as the "Stations."
WHEREAS, Seller desires to sell, and Buyer desires to
purchase, all of the tangible and intangible personal property of Seller,
subject only to certain specified exceptions; and
WHEREAS, Buyer desires to obtain, and Seller is willing to
allow Buyer to obtain, the assignment of the authorizations issued by the
Federal Communications Commission ("Commission") for the operation of the Owned
Stations and any other licenses, permits or authorizations issued by any
governmental or regulatory agency in connection with the operation of the owned
Stations; and
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants, warranties and agreements between the parties contained
herein, the parties hereby agree that:
Section 1. Assets to Be Conveyed. On the "Closing Date", as
defined in Section 16 hereof, Seller will assign, transfer, sell, convey and
deliver to Buyer the licenses and authorizations relating to the Owned Stations,
and all of the tangible and intangible personal property, leasehold interests in
real property, and agreements and contracts of Seller, as described below:
(a) Subject to Commission approval, all legally
assignable licenses, permits, authorizations, consents, franchises and
certificates of compliance issued by the Commission, and any other governmental
or regulatory agency that
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are required in connection with the operation of the Owned Stations (hereinafter
referred to as the "Licenses");
(b) All of the tangible personal property of Seller,
including, without limitation, all equipment, machinery, fixtures, furniture,
leasehold improvements, vehicles, transmitters, receivers, transformers,
antennas, tower, equipment, records and tapes so used;
(c) All of the intangible personal property of
Seller, and specifically including any cash, accounts receivable, prepaid items
and general ledgers, of Seller;
(d) The real property interests held in fee simple
and leasehold interests in real property of Seller used or useful in the
operation of the Owned Stations that are set forth in Section 4.6 of the
Disclosure Schedule to the Loan Agreement dated as of _________________, 1995 by
and between Seller and Buyer (the "Loan Agreement") and real property fee simple
interests acquired or leasehold interests entered into after the date of the
Loan Agreement as permitted in accordance with the terms of the Loan Agreement;
(e) The contracts and agreements of Seller, including
the LMA Agreement and the Option Agreement, that are either set forth in Section
4.8 of the Disclosure Schedule to the Loan Agreement or are not required to be
set forth in the Disclosure Schedule under the provisions of Section 4.8 of the
Loan Agreement and those contracts and agreements entered into after the date of
the Loan Agreement as permitted in accordance with the terms of the Loan
Agreement;
(f) The call letters and all trademarks, tradenames,
service marks, copyrights, jingles, slogans, permits, franchises, and property
rights and interests required in the operation of the Owned Stations; and
(g) All business and governmental records (except
corporate records and tax returns of Seller) and Commission files relating to
the operation of the Owned Stations, including without limitation, purchase and
sale order files, mailing lists, advertisers lists, sales materials and records,
personnel files, and medium materials, provided, that Buyer and Seller shall
each have full access after the Closing to such records held by the other party
relating to the operation of the Station by Seller for the purpose of
bookkeeping, tax preparation, accounting procedures and for such other purposes
as may be reasonably necessary or proper.
The foregoing licenses authorizations, tangible and intangible
personal property, fee simple real property interests, leasehold interests in
real property, contracts and agreements
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("Station Assets") are to be assigned, transferred and conveyed to Buyer, by
good and sufficient bill of sale and/or other documents of transfer, free and
clear of all liens, charges, encumbrances, debts, liabilities and obligations
whatsoever, except for liens in favor of Buyer created under the Loan Agreement
and related documents.
Notwithstanding the foregoing, there shall be excluded from
the assets transferred by Seller to Buyer hereunder corporate records and tax
returns of Seller.
Section 2. Purchase Price. Subject to any adjustments pursuant
to Section 6, the purchase price to be paid by Seller to Buyer for the Station
Assets, on the Closing Date, shall be the sum of One Million Dollars
($1,000,000) and the cancellation of the outstanding principal amount of the
loans made to Seller pursuant to the Loan Agreement.
Section 3. Assumption of Liabilities. Upon the sale and
purchase of the Station Assets, Buyer shall assume Seller's obligations
associated with the Owned Stations to be performed after 12:01 AN on the Closing
Date (but not obligations to have been performed by Seller prior to such time)
under, and as set forth in, the contracts, leases and agreements described in
Section 1(d) and (e) hereof. Buyer is not agreeing to, and shall not, assume any
other liability, obligation, undertaking, expense or agreement of Seller of any
kind, absolute or contingent, known or unknown, and the execution, delivery and
performance of this Agreement shall not render Buyer liable for any such
liability, obligation, undertaking, expense or agreement.
Section 4. Representations, Covenants and Warranties of
Seller. Seller represents, warrants, and covenants:
(a) That Seller is now and as of the Closing
Date will be a corporation duly organized,, validly existing and in good
standing under the laws of South Carolina.
(b) That Seller, now and as of the Closing Date,
is and will be the valid holder in good standing of the Licenses and other
authorizations issued by the Commission.
(c) That the Owned Stations and to Seller's
knowledge, the LMA Stations, are in material compliance with all applicable
rules of the Commission and for the Licenses.
(d) That Seller does not know of, or have any
reasonable grounds to know of any:
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(i) Litigation or proceeding pending or
threatened against or relating to the Owned Stations,
the LMA Stations or their respective properties or
business.
(ii) Basis for any current or prospective
governmental investigation or action relative to the
Owned Station(s), the LMA Stations or their
respective properties or business;
(e) That Seller does not know of any facts which
would cause the Commission to deny its consent to the assignment of the Licenses
to Buyer, except that Seller makes no representation regarding any necessary
waiver of the Commission's one-to-a-market rule, 47 C.F.R. ss.73.3555(b).
(f) That Seller is entitled and authorized to
own and operate the Owned Stations and to carry on its business in the manner
and in the place where the Owned Station is owned and operated and the business
is now conducted.
(g) That Seller has the power and authority to
execute and deliver this Agreement, to consummate the transactions it
contemplates and to take all other actions required to be taken by Seller
pursuant to the provisions of this Agreement, and neither the execution of this
Agreement nor the consummation of the transactions contemplated by it will
violate or constitute a default on the part of Seller under any contract or
agreement to which Seller is a party or by which Seller is bound or under any
law, statute, rule, regulation, decree or order of any court or governmental
agency or authority. That this Agreement constitutes the legal, valid and
binding obligation of Seller, enforceable in accordance with its terms.
(h) That no consent or approval of any other person
or entity which has not been obtained by Seller is required before Seller may
execute, deliver and perform its obligations under this Agreement, with the
exception of the Commission and the other party to the LMA Agreement and the
Option Agreement and under such other contracts or agreements of Seller
requiring consent to assignment and Seller shall use all commercially reasonable
efforts to obtain such consents.
(i) That Seller has not caused or allowed any
chemical, toxic, radioactive or other hazardous waste or material to be brought
or stored upon any of the leasehold property or other assets of the Owned
Stations or the LMA Stations.
(j) That Seller has good, valid and, in the case
of any real property in fee simple, marketable, title to all of the Station
Assets, free and clear of all liens, charges, encumbrances, debts, liabilities
and obligations of any nature
- 5 -
whatsoever, except for liens in favor of Buyer created under the Loan Agreement
and related documents and that the Station Assets are in good order and repair
and are used in material compliance with all state and federal laws and
regulations relating to safety of the work place.
(k) That the Station Assets are adequately covered by
insurance against fire, theft and other casualty.
(l) That Seller has filed all returns and other
reports of taxes due or information required for all federal, state and local
income, franchise, business, sales and use taxes, and all returns or reports,
when filed, were accurate and complete, and all taxes which should have been
paid have been paid.
Section 5. Representations, Warranties and Covenants of Buyer.
Buyer represents, warrants and covenants:
(a) That Buyer is and as of the Closing Date
will be a limited partnership duly organized, validly existing and in good
standing under the laws of its State of organization.
(b) That this Agreement constitutes the legal,
valid and binding obligation of Buyer, enforceable in accordance
with its terms.
(c) That except for the necessity of a waiver of
the Commission's one-to-a-market rule, 47 C.F.R. ss.73.3555(b) because of Buyer
ownership of WLOS(TV) and WAXA(TV), Buyer does not know of any facts which would
disqualify it under the Communications Act of 1934,, as amended, from owning or
operating the Station or which would cause the Commission to deny its consent to
the assignment of the Station to Buyer.
(d) That Buyer will reasonably cooperate with
Seller in securing assignment of the leasehold interests in real estate to be
transferred from Seller to Buyer hereunder, and in securing completed
assignments, and consents thereto where applicable, of the remaining contracts
and commitments of Seller to be assumed by Buyer hereunder, including timely
completing any applications required by third parties such as credit reports and
financial statements, etc.
Section 6. Adjustments. To the extent applicable, a downward
adjustment in an amount equal to the amount calculated under Section 2.1(b)(ii)
of the Loan Agreement.
Section 7. Expenses. The expenses involved in the preparation
and consummation of this Agreement shall be borne by the party incurring same.
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Section 8. Obligations of the Parties Before Closing. From and
after the date of this Agreement and until the Closing Date:
(a) Seller shall conduct the business of the
Owned Stations in the normal course and as has been heretofore
conducted by Seller;
(b) Seller shall not purchase, sell, lease, or
dispose of, or enter into any contract for the purchase, sale, lease or
disposition of any property or assets having a cost in excess of $5,000 or a
contractual period extending beyond the Closing Date without the prior written
approval of Buyer;
(c) Seller shall operate the Owned Stations in
all material respects in accordance with all laws, rules and regulations
applicable to it, including the regulations of the Commission;
(d) Seller shall provide to Buyer, promptly upon
receipt thereof by Seller, a copy of (i) any notice from the Commission or any
other governmental authority of the revocation, suspension, or limitation of the
rights under, or of any proceeding for the revocation, suspension, or limitation
of the rights or that such authority may in the future (as the result of failure
to comply with laws or regulations or for any other reason) revoke, suspend, or
limit the rights under any License, or any other license or permit held by
Seller respecting the owned Station, and (ii) copies of all protests,
complaints, challenges or other documents filed with the Commission by third
parties concerning either of the Station, and promptly upon the filing or making
thereof, copies of Seller's responses to such filings; and
(e) Seller shall notify Buyer in writing
immediately upon learning of the institution or threat of any material action
against Seller in any court, or any action against Seller before the Commission
or any other governmental agency, and notify Buyer in writing promptly upon
receipt of any administrative or court order relating to the Station Assets or
the business of Seller.
Section 9. Contingency of Obligations of Buyer. All
obligations of Buyer under this Agreement are subject to the fulfillment, prior
to or at the Closing Date, of each of the following conditions, any of which
Buyer may waive in writing:
(a) The representations and warranties of Seller
contained in this Agreement shall be true at and as of the Closing Date as
though such representations and warranties were made at and as of the Closing
Date.
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(b) Seller shall have materially performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by Seller prior to or at the Closing.
(c) The Commission shall have granted its
approval of the assignment of the Owned Stations' licenses and authorizations to
Buyer and such approval has become a Final Order (as defined herein) and any
necessary waiver required under the terms of C.F.R. ss.73.3555(b) shall have
been obtained without any adverse conditions to Buyer and shall have become a
Final Order.
(d) Seller shall have delivered to Buyer an
opinion from its counsel, dated as of the Closing Date to the following effect:
(i) Seller is a corporation validly existing
and in good standing under the laws of the State of
Louisiana;
(ii) Seller is entitled to own its
properties and carry on its business as, and in the
places where, the properties are owned and operated
and the business is now conducted;
(iii) All actions to be taken by or on the
part of Seller to authorize it to carry out and
perform the Agreement and the transactions it
contemplated have been duly and properly taken;
(iv) There are no actions, suits or
proceedings before any Court or administrative agency
pending or threatened against or affecting Seller or
the Station Assets; and
(v) This Agreement constitutes the legal,
valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject
to customary bankruptcy and similar limitations and
limitations on the availability of equitable
remedies.
(e) Buyer shall not have exercised its right
to terminate this Agreement pursuant to Section 15
hereof.
Section 10. Contingency of Obligations of Seller. All
obligations of Seller under this Agreement are subject to the fulfillment, prior
to or at the Closing, of each of the following conditions, any of which Seller
may waive in writing:
- 8 -
(a) The representations and warranties of Buyer
contained in this Agreement shall be true at and as of the Closing Date as
though such representations and warranties were made at and as of the Closing
Date.
(b) Buyer shall have materially performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by Buyer prior to or at the Closing Date.
(c) The Commission shall have granted its
approval of the assignment of the Owned Stations' Licenses to
Buyer.
(d) The payment to Seller by Buyer of the
Purchase Price.
(e) The assumption by Buyer of all contracts,
leases and agreements of Seller to be assumed by Buyer hereunder.
(f) Buyer shall have delivered to Seller an
opinion from its counsel, dated as of the Closing Date to the following effect:
(i) Buyer is a limited partnership validly
existing and in good standing under its State of
organization;
(ii) All partnership actions to be taken by
or on the part of Buyer to authorize it to carry out
and perform the Agreement and the transactions it
contemplated have been duly and properly taken; and
(iii) This Agreement constitutes the legal,
valid and binding obligation of Buyer enforceable
against Buyer in accordance with its terms, subject
to customary bankruptcy and similar limitations and
limitations on the availability of equitable
remedies.
Section 11. Further Closing Documents. On the Closing Date and
as a further contingency of the obligation of Buyer (in the case of (a) and (b)
below) or Seller (in the case of (b) below), as applicable, as provided for
below to close hereunder:
(a) Seller shall deliver to Buyer:
(i) One or more bills of sale conveying to
Buyer all of the tangible and intangible personal
- 9 -
property included in the assets to be acquired by
Buyer hereunder;
(ii) one or more general warranty deeds, for
all real property owned in fee simple and one or more
assignments of the leasehold interests in real
property transferring to Buyer such leasehold
interests; and
(iii) one or more assignments, with all
necessary consents, assigning to Buyer all of the
contracts, agreements, accounts receivable and cash
to be assigned to Buyer hereunder,
(b) Seller and Buyer shall also execute such
other documents, as may reasonably be necessary for the implementation and
consummation of this Agreement.
Unless otherwise provided in this Agreement, all instruments
and documents delivered shall be dated the Closing Date and shall be reasonably
satisfactory as to form and content to each party and its respective counsel.
Section 12. Application to Commission. Seller and Buyer shall
cooperate in the prompt preparation and filing, within seven (7) days from the
date of this Agreement, of an application with the Commission requesting its
consent to the assignment of the Licenses for the Owned Stations from Seller to
Buyer (or to such other entity as designed by Buyer). The parties shall
thereafter prosecute the Commission application(s) with all reasonable diligence
and otherwise use their commercially reasonable efforts to obtain the grants of
such applications) as expeditiously as practicable (but no party shall have any
obligation to take any unreasonable steps to satisfy complainants, if any, which
steps would substantially impair or diminish rights under the Commission
Licenses or otherwise impose an unreasonable burden on a party). If the
Commission consent imposes any condition on any party hereto, such party shall
use its commercially reasonable efforts to comply with such condition unless
compliance would be unduly burdensome or would have a material adverse effect
upon Buyer, or materially adversely affects its constituent partners, or any of
its subsidiaries, as appropriate. If reconsideration, review or judicial review
is sought with respect to the Commission consent, Buyer and Seller shall oppose
such efforts for reconsideration, review or judicial review vigorously. If the
Closing shall not have occurred for any reason within the original effective
period of the Commission consent, and if none of the parties hereto are in
breach or default of its obligations, representations, warranties and covenants
or duties hereunder, the parties shall jointly request an extension of the
effective period of the Commission consent. Notwithstanding any of the
foregoing, if the Commission consent
- 10 -
imposes any condition that would adversely change (other than a change in
reporting requirements that is not unduly burdensome) or limit the operations of
any of the owned Stations or of WLOS(TV) or WAXA(TV) after the Closing or
require a divestiture of either WLOS(TV) or WAXA(TV) by Buyer after the Closing,
Buyer may, at its option, terminate this Agreement without any liability or
obligation to Seller.
Section 13. Commission Approval. If the Commission has failed
to grant its approval of the assignment of the Owned Stations' Licenses from
Seller to Buyer within a period of sixty (60) months from the date of filing of
the applications described herein, either Seller or Buyer may thereafter
terminate this Agreement by giving written notice to the other; provided,
however, that the party desiring to terminate shall not then be in material
breach of this Agreement and have been then notified in writing by the other
party thereof.
Section 14. Remedies of Parties Upon Default. If Seller
defaults in the performance of its obligations under this Agreement to complete
the sale to the Buyer as herein set forth, and Buyer shall not be in material
breach, Buyer may terminate this Agreement upon notice in writing to Seller and
shall be entitled to bring an action for damages or specific performance or
both. If Buyer defaults in the performance of its obligations under this
Agreement to complete the purchase from Seller as herein set forth, as and when
herein set forth, and Seller shall not be in material breach, Seller may
terminate this Agreement upon notice in writing to Buyer, and Seller shall be
entitled to bring an action for damages or specific performance or both. In the
event that both Buyer and Seller have defaulted hereunder, and neither party's
default was caused by the inability of such party to perform due to the other
party's default, then either party may terminate this Agreement upon written
notice to the other without any further liability to each other. Neither Buyer,
on the one hand, nor Seller, on the other hand, may rely on the failure of any
condition precedent set forth herein to be satisfied if such failure was caused
by such party's (or parties') failure to act in good faith, or a breach of or
failure to perform its representations, warranties, covenants or other
obligations in accordance with the terms hereof.
Section 15. Damage to Seller's Properties. In the event of any
material damage to the Stations or any of the assets to be acquired by Buyer by
reason of fire or other casualty or incident occurring between the date hereof,
and the Closing Date, Seller shall give Buyer notice of such event. In such
notice, Seller shall indicate its best estimate of the damages, and if
repairable, the length of time required for restoration. Seller shall take all
reasonable steps to repair, replace and restore such property as soon as
possible after the loss, and in addition, if repairable, shall apply any
insurance proceeds
- 11 -
received because of such loss to such restoration. In the event of such damage,
which is not fully required or restored prior to closing, or if is interrupted
such that the regular broadcast signal of any Station (including its effective
radiated power is diminished in any material respect for a period of 72
continuous hours or more at any time prior to the Closing Date, Buyer may
terminate this Agreement or postpone the Closing Date for a period of up to 180
days.
Section 16. Closing. The Closing Date, as used throughout this
Agreement, shall take place (subject to the provisions of this Agreement
deferring or permitting the postponement of the Closing) within ten (10) days
after the later of (i) consent of the Commission to the assignment of the
Commission Licenses shall have been granted and shall have become a Final Order,
and (ii) grant by the Commission of any necessary waiver under 47 C.F.R.
ss.73.3555(b) shall have been obtained and such grant shall have become a Final
Order, such date and the place thereof to be selected by Buyer. "Final Order"
means an action or order by the Commission (a) that has not been reversed,
stayed, enjoined, set aside, annulled or suspended, and (b) with respect to
which (i) no requests have been filed for administrative or judicial review,
reconsideration, appeal or stay and the Commission has not initiated a review of
such action or order on its own action and the periods provided by statute or
Commission regulations for filing any such requests and for the Commission to
set aside the action on its own notion have expired, or (ii) in the event of
review, reconsideration or appeal, the period provided by statute or Commission
regulations for further review, reconsideration or appeal has expired.
Section 17. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or by Federal Express or other comparable nationally recognized
courier service (receipt requested) or by facsimile transmission, telexed or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice; provided that notices of a change
of address shall be effective only upon receipt thereof):
To South Carolina:
------------------
Keymarket Communications, Inc.
2743 Perimeter Parkway
Building 100, Suite 250
Augusta, Georgia 30909
Attention: Mr. Donald J. Alt
Telephone: (706) 855-0555
Telecopy: (706) 855-1955
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Copies to:
----------
Joel B. Piassick, Esq.
Kilpatrick & Cody
1100 Peachtree Street
Suite 2800
Atlanta, Georgia 30309
Telephone: (404) 815-6527
Telecopy: (404) 815 6555
Mr. Richard A. Churchill
MC Partners
75 State Street
Suite 2500
Boston, Massachusetts 02109
Telephone: (617) 345-7200
Telecopy: (617) 345-7201
Bruce E. Rogoff, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Telephone: (617) 542-6000
Telecopy: (617) 542-2241
To Buyer:
---------
c/o River City Broadcasting, L.P.
1215 Cole Street
St. Louis, Missouri 63106
Attention: Mr. Larry D. Marcus
Telephone: (314) 259-5700
Telecopy: (314) 259-5709
Copies to:
----------
John T. Byrnes, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Suite 500
Washington, D.C. 20037
Telephone: (202) 857-2518
Telecopy: (202) 857-2900
Section 18. Survival. Notwithstanding any investigation made
by either Buyer or Seller, all covenants, agreements, representations and
warranties contained in this Agreement, and in any other instruments which may
be delivered pursuant hereto or in connection with the transactions contemplated
hereby, shall be deemed to be material and to have been relied upon by Buyer or
Seller, as applicable, but the
- 13 -
representations and warranties of the parties made herein shall not survive the
Closing and the condition of the transactions contemplated by this Agreement;
provided that nothing herein shall affect Buyer's rights under that certain
Asset Purchase Agreement dated as of March , 1995, by and among Buyer, Seller
and certain affiliated entities of Seller (the "Purchase Agreement").
Section 19. Commissions. Except for any fee payable to Star
Media Group, Inc. pursuant to a Letter Agreement among Sellers and Star Media
Group, Inc. dated June 1, 1994, which fees shall be paid by Seller, Buyer and
Seller represent and warrant that neither it or its affiliates nor any person or
entity acting on its behalf has incurred any liability for any finders' or
brokers' fees or commissions in connection with the transaction contemplated by
this Agreement, Buyer agrees to indemnify and hold harmless Seller against any
fee, commission, loss or expense arising out of any claim by any other broker or
finder employed or alleged to have been employed by Buyer, and Seller agrees to
indemnify and hold harmless Buyer against any fee, commission, loss or expense
arising out of any claim by any other broker or finder employed or alleged to
have been employed by any Seller.
Section 20. Further Assurances. Subject to the terms and
conditions of this Agreement, each of the parties hereto will use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the sale
contemplated by this Agreement. From time to time after the Closing Date,
without further consideration, Seller will, at Seller's expense, execute and
deliver, or cause to be executed and delivered, such documents to Buyer as Buyer
may reasonably request in order to more effectively vest in Buyer good title to
the Station Assets and to evidence the representations and warranties of Seller.
From time to time after the Closing Date, without further consideration, Buyer
will, at Buyer's expense, execute and deliver such documents to Seller as Seller
may reasonably request in order to more effectively consummate the sale of the
Station Assets pursuant to this Agreement.
Section 21. Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement of Seller and Buyer.
Section 22. Waiver Of Compliance; Consents. Except as
otherwise provided in this Agreement, any failure of any of the parties to
comply with any obligation, representation, warranty, covenant, agreement or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such
- 14 -
obligation, representation, warranty, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
22.
Section 23. Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
provided for herein, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either Buyer or Sellers hereto
without the prior written consent of the other party.
The parties agree as follows:
(a) Without the consent of Seller, Buyer may assign
all or any of the rights and obligations under this Agreement to any other
party. Furthermore, to the extent this Agreement is assigned by Buyer in
accordance with the terms of this Section 23 to a party that is not an affiliate
of Buyer, upon such assignment Buyer shall have no further obligations under
this Agreement and Seller's only recourse under this Agreement shall be against
such assignee of Buyer.
(b) Except as expressly provided herein, this
Agreement is not intended to, and shall not, confer upon any other person except
the parties hereto any rights or remedies hereunder.
Section 24. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF MISSOURI (BUT NOT THE LAWS PERTAINING TO CHOICE OF LAW)
AS TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO MATTERS OF VALIDITY,
CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES.
Section 25. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 26. Headings. The article and section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Agreement.
Section 27. Entire Agreement. This Agreement and the documents
delivered pursuant to the Agreement, the Loan Agreement and the Option Agreement
dated as of ,
- 15 -
between Buyer and Seller, and the Purchase Agreement, embody the entire
agreement and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement. This Agreement supersedes all prior
negotiations, agreements and understandings between the parties with respect to
the transactions contemplated by this Agreement and all letters of intent and
other writings executed prior to the date hereof relating to such negotiations,
agreements and understandings; provided that nothing herein shall affect the
provisions of the Loan Agreement, the Option Agreement or the Purchase
Agreement;
Section 28. Severability. If any provision of this Agreement
or the application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the greatest
extent possible.
Section 29. Press Releases. No press releases or other public
announcements concerning this Agreement or the transactions contemplated hereby
shall be made by any party hereto without the prior written consent of the other
party unless the first such party is legally compelled to do so.
Section 30. Publicity. Neither Seller nor Buyer shall make or
issue or cause to be made or issued, any announcement (written or oral)
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of the other
party. This provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or state
governmental agency or any stock exchange, except that the party required to
make such announcement shall provide a draft copy thereof to the other party
hereto, and consult with such other party concerning the timing and content of
such announcement, before such announcement is made.
Section 31. Employee Matters. (a) At Closing, Buyer shall
offer employment to all of Seller's employees who are actively employed as of
the Closing Date (such employees who accept employment with Buyer, "Transferred
Employees") on terms and conditions substantially identical to the terms and
- 16 -
conditions offered to other employees employed by Buyer in Buyer's radio
division, including any changes to such terms and conditions, as may be made by
Buyer after the Closing Date; provided, however, that Buyer, in its sole
discretion, shall have the option to provide to such Transferred Employees
health care coverage on substantially the terms of the health care coverage
provided by the Seller prior to the Closing Date. To the extent permitted by
applicable law, each Transferred Employee's years of service with Seller, to the
extent credited under Seller's employee benefits plans, shall be credited as
years of service towards eligibility and vesting in Buyer's comparable employee
benefit plans, including any qualified retirement, pension, profit sharing or
401(k) plans. With respect to the health care plan of Buyer that provides
coverage to Transferred Employees after the Closing in accordance with this
Section 31, Buyer shall offer coverage thereto without the application of
pre-existing conditions restrictions for any pre-existing conditions of the
Transferred Employees covered under the terms of Seller's health care plan
immediately prior to the Closing Date. In addition, to the extent any
Transferred Employee has paid medical expenses which have been applied against
such employee's deductible under Seller's health insurance plan with respect to
the plan, that amount shall be credited by Buyer towards satisfying any
deductible under Buyer's health insurance plan. Seller agrees to use its best
efforts to assist Buyer in the assumption of any insurance contracts used to
provide health care coverage to Seller's employees in the event Buyer notifies
Seller of its intent to assume such contracts.
(b) Seller shall be responsible for and shall pay all
amounts owed to (i) any employees who have not become Transferred Employees and
(ii) any Transferred Employees for services performed prior to the Closing,
except in respect of Transferred Employees for accrued sick leave and for
accrued vacation pay. Seller shall indemnify and hold Buyer harmless from any
liabilities relating to employees (whether or not Transferred Employees) not
expressly assumed by Buyer hereunder. Notwithstanding the foregoing, however,
after the Closing, Buyer shall be solely responsible for wages, benefits and any
employment related claims brought by any Transferred Employee against Buyer or
Seller by reason of Buyer's acts or omissions in connection with such employment
or the termination thereof, to the extent any such liability or claims is
attributable to a period commencing after the-Closing Date. Buyer shall
indemnify and hold Seller harmless from and against any and all such claims
(including reasonable attorneys fees and other expenses associated with such
claims) referred to in the preceding sentence.
(c) It is understood and agreed that all provisions
contained in this Section 31 are included for the sole
- 17 -
benefit of the parties hereto and do not and shall not create any right in any
other person, including any employees.
Section 32. Control of the Stations. Prior to the Closing,
Buyer shall not, directly or indirectly, control, supervise or direct, or
attempt to control, supervise or direct, the operation of the Owned Stations;
such operation, including complete control and supervision of all of each Owned
Station's programs, employees and policies, shall be the sole responsibility of
Seller.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
KEYMARKET OF SOUTH CAROLINA, INC.
By:
-------------------------------
Name:
Title:
RIVER CITY BROADCASTING, L.P.
By:Better Communications, Inc.,
General Partner
By:
-------------------------------
Name:
Title:
- 18 -
EXHIBIT C TO OPTION AGREEMENT
-------------------------------
STOCK PURCHASE AGREEMENT
BY AND AMONG
RIVER CITY BROADCASTING, L.P.
AND
KERBY E. CONFER
--------------------------, ---------
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TABLE OF CONTENTS
Section 1. Shares to Be Sold......................................................................4
Section 2. Purchase Price.........................................................................4
Section 3. Liabilities............................................................................4
Section 4. Representations, Covenants and Warranties of
Seller.................................................................................5
Section 5. Representations, Warranties and Covenants
of Buyer...............................................................................7
Section 6. Adjustments............................................................................7
Section 7. Expenses...............................................................................7
Section 8. Obligations of the Parties Before Closing..............................................7
Section 9. Contingency of Obligations of Buyer....................................................8
Section 10. Contingency of Obligations of Seller...................................................9
Section 11. Further Closing Documents.............................................................10
Section 12. Application to Commission.............................................................10
Section 13. Commission Approval...................................................................11
Section 14. Remedies of Parties upon Default......................................................11
Section 15. Damage to Company's Properties........................................................11
Section 16. Closing...............................................................................11
Section 17. Notices...............................................................................12
Section 18. Survival..............................................................................13
Section 19. Commissions...........................................................................13
Section 20. Further Assurances....................................................................13
Section 21. Amendment and Modification............................................................14
Section 22. Waiver of Compliance; Consents........................................................14
Section 23. Assignment............................................................................14
Section 24. Governing Law.........................................................................14
Section 25. Counterparts..........................................................................15
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Section 26. Headings..............................................................................15
Section 27. Entire Agreement......................................................................15
Section 28. Severability..........................................................................15
Section 29. Press Releases........................................................................15
Section 30. Publicity.............................................................................15
Section 31. Control of the Stations...............................................................16
- 1 -
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into this _____ day of
_______________, _____, by and between Kerby E, Confer ("Seller") and RIVER CITY
BROADCASTING, L.P., a Delaware limited partnership ("Buyer").
WITNESSETH:
WHEREAS, Seller owns all of the issued and outstanding shares
(the "Shares") of capital stock of Keymarket of South Carolina, Inc,, a South
Carolina corporation (the "Company"), Seller desires to sell to Buyer, and Buyer
desires to purchase from Seller, the Shares on the terms and conditions herein
set forth.
WHEREAS, Company is the licensee of, and owns and operates
radio stations WFBC-AM and WFBC-FM, Greenville, South Carolina and WORD-AM,
Spartanburg, South Carolina (the "Owned Stations") and is a party to that
certain Time Brokerage Agreement dated as of August 30, 1994 by and between
South Carolina and Spartanburg Radiocasting Company (the "LMA Agreement") and an
Option Agreement dated as of August 30, 1994 by and between South Carolina and
Spartanburg Radiocasting Company (the "LMA Option Agreement") each relating to
Radio Stations WSPA-AM and WSPA-FM Spartanburg, South Carolina (the "LMA
Stations"). The Owned Stations and the LMA Stations are individually referred to
herein as a "Station" and collectively as the "Stations."
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants, warranties and agreements between the parties contained
herein, the parties hereby agree that:
Section 1. Shares to Be Sold. On the "Closing Date," as
defined in Section 16 hereof, Seller will sell, assign, transfer, convey and
deliver to Buyer ___ shares of common stock of the Company (the "Shares") which
Shares constitute all of the issued and outstanding capital stock of the
Company. At Closing, Seller shall deliver the stock certificates evidencing the
Shares, together with stock powers duly endorsed in blank and such other
instruments of transfer as Buyer may reasonably request. The Shares shall be
free and clear of all liens, charges, encumbrances, debts, liabilities and other
obligations whatsoever, except for liens in favor of Buyer created under that
certain Loan Agreement dated as of 1995 between Buyer and Company (the "Loan
Agreement") and related documents.
Section 2. Purchase Price. Subject to any adjustments as
provided for in Section 6, the purchase price to
- 2 -
be paid by Seller to Buyer for the Shares, on the Closing Date, shall be the sum
of One Million Dollars ($1,000,000).
Section 3. Liabilities. At the Closing Date, Seller covenants
and agrees that the Company shall have no liability, obligation, undertaking,
expense or agreement of any kind, absolute or contingent, known or unknown,
except for: (a) obligations to Buyer under the Loan Agreement; (b) obligations
from and after the Closing Date under the contracts, leases and agreements
described in Section 4(m) and (n) below; and (c) other obligations incurred in
the ordinary course of business of the company consistent with past practice and
which have been adjusted in Buyer's favor in accordance with the provisions of
Section 6 hereof.
Section 4. Representations, Covenants and Warranties of
Seller. Seller represents, warrants, and covenants:
(a) That Company is now and as of the Closing Date
will be a corporation duly organized, validly existing and in good standing
under the laws of South Carolina.
(b) That Company, now and as of the Closing Date, is
and will be the valid holder in good standing of the licenses, permits, and
other authorizations (the "Licenses") issued by the commission.
(c) That the Owned Stations and to Seller's
knowledge, the LMA Stations, are in material compliance with all applicable
rules of the Commission and for the Licenses.
(d) That Seller does not know of, or have any
reasonable grounds to know of any:
(i) Litigation or proceeding pending or
threatened against or relating to the Company, the
owned Stations, the LMA Stations or their respective
properties or business
(ii) Basis for any current or prospective
governmental investigation or action relative to the
Company, the Owned Station(s), the LMA Stations or
their respective properties or business;
(e) That Seller does not know of any facts which
would cause the Commission to deny its consent to the transfer of control of the
Licenses to Buyer, except that Seller makes no representation regarding any
necessary waiver of the Commission's one-to-a-market rule, 47 C.F.R.
ss.73.3555(b),
- 3 -
(f) That Company is entitled and authorized to own
and operate the Owned Stations and to carry on its business in the manner and in
the place where the Owned Station is owned and operated and the business is now
conducted.
(g) That Seller has the power and authority to
execute and deliver this Agreement, to consulate the transactions it
contemplates and to take all other actions required to be taken by Seller
pursuant to the provisions of this Agreement, and neither the execution of this
Agreement nor the consummation of the transactions contemplated by it will
violate or constitute a default on the part of Seller or Company under any
contract or agreement to which Seller or Company is a party or by which Seller
or Company is bound or under any law, statute, rule, regulation decree or order
of any court or governmental agency or authority. That this Agreement
constitutes the legal, valid and binding obligation of Seller, enforceable in
accordance with its terms.
(h) That no consent or approval of any other person
or entity which has not been obtained by Seller is required before Seller may
execute, deliver and perform its obligations under this Agreement, with the
exception of the Commission and under such other contracts or agreements of
Company requiring consent to the stock transfer contemplated hereby and Seller
shall use all commercially reasonable efforts to obtain such consents.
(i) That Seller has not caused or allowed any
chemical, toxic, radioactive or other hazardous waste or material to be brought
or stored upon any of the leasehold property or other assets of the Owned
Stations or the LMA Stations.
(j) That Company has good, valid and, in the case of
any real property in fee simple, marketable, title to all of the Assets of the
Company, free and clear of all liens, charges, encumbrances debts, liabilities
and obligations of any nature whatsoever, except for liens in favor of Buyer
created under the Loan Agreement and related documents and that the Assets of
the company are in good order and repair and are used in material compliance
with all state and federal laws and regulations relating to safety of the work
place.
(k) That the Assets of the Company are adequately
covered by insurance against fire, theft and other casualty.
(1) That Company has filed all returns and all other
reports of taxes due or information required for all federal, state and local
income, franchise, business, sales and use taxes, and all returns or reports,
when filed, were accurate and complete, and all taxes which should have been
paid have been paid.
- 4 -
(m) That the only real property interests held in fee
simple and leasehold interests in real property of Company used or useful in the
operation of the Owned Stations are those set forth in Section 4.6 of the
Disclosure Schedule to the Loan Agreement and real property fee simple interests
acquired or leasehold interests entered into after the date of the Loan
Agreement as permitted in accordance with the terms of the Loan Agreement.
(n) That the only contracts and agreements of Company
are either set forth in Section 4.8 of the Disclosure Schedule to the Loan
Agreement or are not required to be set forth in the Disclosure Schedule under
the provisions of Section 4.8 of the Loan Agreement and those contracts and
agreements entered into after the date of the Loan Agreement as permitted in
accordance with the terms of the Loan Agreement.
(o) The Shares constitute all of the issued and
outstanding Capital Stock of the Company, The Shares are duly issued, fully paid
and non-assessable. The Shares are owned beneficially and of record by Seller,
the Seller has good and valid title to the shares and the shares are free and
clear of all liens, charges, encumbrances, debts, liabilities and obligations
whatsoever, except for liens in favor of Buyer created under the Loan Agreement.
There are no options, warrants, or other rights of any nature whatsoever to
acquire capital stock of the Company.
Section 5. Representations, Warranties and Covenants of Buyer.
Buyer represents, warrants and covenants:
(a) That Buyer is and as of the Closing Date will be
a limited partnership duly organized, validly existing and in good standing
under the laws of its State of organization.
(b) That this Agreement constitutes the legal, valid
and binding obligation of Buyer, enforceable in accordance with its terms.
(c) That except for the necessity of a waiver of the
Commission's one-to-a-market rule, 47 C.F.R. ss.73.3555(b) because of Buyer
ownership of WLOS(TV) and WAXA(TV), Buyer does not know of any facts which would
disqualify it under the Communications Act of 1934, as amended, from owning or
operating the Station or which would cause the Commission to deny its consent to
the assignment of the Station to Buyer.
(d) That Buyer will reasonably cooperate with Seller
in securing consents where applicable, of the remaining contracts and
commitments of Company, including timely completing any applications required by
third parties such as credit reports and financial statements, etc.
- 5 -
Section 6. Adjustments. To the extent applicable, a downward
adjustment in an amount equal to the amount calculated under Section 2.1(b)(ii)
of the Loan Agreement.
Section 7. Expenses. The expenses involved in the preparation
and consummation of this Agreement shall be borne by the party incurring same.
Section 8. Obligations of the Parties Before Closing. From and
after the date of this Agreement and until the Closing Date:
(a) Seller shall cause Company to conduct the
business of the Owned Stations in the normal course and as has been heretofore
conducted by Seller;
(b) Seller shall cause Company not to purchase, sell,
lease, or dispose of, or enter into any contract for the purchase, sale, lease
or disposition of any property or assets having a cost in excess of $5,000 or a
contractual period extending beyond the Closing Date without the prior written
approval of Buyer;
(c) Seller shall cause Company to operate the Owned
Stations in all material respects in accordance with all laws, rules and
regulations-applicable to it, including the regulations of the Commission;
(d) Seller shall provide to Buyer, promptly upon
receipt thereof by Seller, a copy of (i) any notice from the commission or any
other governmental authority of the revocation, suspension, or limitation of the
rights under, or of any proceeding for the revocation, suspension, or limitation
of the rights or that such authority may in the future (as the result of failure
to comply with laws or regulations or for any other reason) revoke, suspend, or
limit the rights under any License, or any other license or permit held by
Seller respecting the Owned Station, and (ii) copies of all protests,
complaints, challenges or other documents filed with the Commission by third
parties concerning either of the Station, and promptly upon the filing or making
thereof, copies of Seller's responses to such filings; and
(e) Seller shall notify Buyer in writing immediately
upon learning of the institution or threat of any material action against Seller
or Company in any court, or any action against Seller or Company before the
Commission or any other governmental agency, and notify Buyer in writing
promptly upon receipt of any administrative or court order relating to business
of the Company.
- 6 -
Section 9. Contingency of Obligations of Buyer. All
obligations of Buyer under this Agreement are subject to the fulfillment, prior
to or at the Closing Date, of each of the following conditions, any of which
Buyer may waive in writing:
(a) The representations and warranties of Seller
contained in this Agreement shall be true at and as of the Closing Date as
though such representations and warranties were made at and as of the Closing
Date.
(b) Seller shall have materially performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by Seller prior to or at the Closing.
(c) The Commission shall have granted its approval of
the transfer of control of the Company's licenses and authorizations to Buyer
and such approval has become a Final order (as defined herein) and any necessary
waiver required under the terms of C.F.R. ss.73.3555(b) shall have been obtained
without any adverse conditions to Buyer and shall have become a Final Order.
(d) Seller shall have delivered to Buyer an opinion
from its counsel, dated as of the Closing Date to the following effect:
(i) Company is a corporation validly
existing and in good standing under the laws of the
State of Louisiana;
(ii) Company is entitled to own its
properties and carry on its business as, and in the
places where, the properties are owned and operated
and the business is now conducted;
(iii) All actions to be taken by or on the
part of Seller or Company to authorize then to carry
out and perform the Agreement and the transactions it
contemplated have been duly and properly taken;
(iv) There are no actions, suits or
proceedings before any Court or administrative agency
pending or threatened against or affecting Seller or
the Company;
(v) This Agreement constitutes the legal,
valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, subject
to customary bankruptcy and similar
- 7 -
limitations and limitations on the availability of
equitable remedies.
(e) Buyer shall not have exercised its right
to terminate this Agreement pursuant to Section 15
hereof.
Section 10. Contingency of Obligations of Seller. All
obligations of Seller under this Agreement are subject to the fulfillment, prior
to or at the Closing, of each of the following conditions, any of which Seller
may waive in writing:
(a) The representations and warranties of Buyer
contained in this Agreement shall be true at and as of the Closing Date as
though such representations and warranties were made at and as of the Closing
Date.
(b) Buyer shall have materially performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by Buyer prior to or at the Closing Date.
(c) The Commission shall have granted its approval of
the transfer of control of the Company's Licenses to Buyer.
(d) The payment to Seller by Buyer of the Purchase
Price.
(e) Buyer shall have delivered to Seller an opinion
from its counsel, dated as of the Closing Date to the following effect:
(i) Buyer is a limited partnership validly
existing and in good standing under its State of
organization;
(ii) All partnership actions to be taken by
or on the part of Buyer to authorize it to carry out
and perform the Agreement and the transactions it
contemplated have been duly and properly taken; and
(iii) This Agreement constitutes the legal,
valid and binding obligation of Buyer enforceable
against Buyer in accordance with its terms, subject
to customary bankruptcy and similar limitations and
limitations on the availability of equitable
remedies.
Section 11. Further Closing Documents. On the Closing Date and
as a further contingency of the obligation of Buyer (in the case of (a) and (b)
below) or Seller (in the case
- 8 -
of (b) below), as applicable, as provided for below, to close hereunder:
(a) Seller shall deliver to Buyer:
(i) The stock certificates evidencing the
shares and stock powers executed in blank.
(ii) All necessary consents under any
agreements of the Seller for the transfer of the
stock contemplated hereunder.
(b) Seller and Buyer shall also execute such other
documents, as may reasonably be necessary for the implementation and
consummation of this Agreement.
Unless otherwise provided in this Agreement, all instruments
and documents delivered shall be dated the Closing Date and shall be reasonably
satisfactory as to form and content to each party and its respective counsel.
Section 12. Application to Commission. Seller and Buyer shall
cooperate in the prompt preparation and filing, within seven (7) days from the
date of this Agreement, of an application with the commission requesting its
consent to the transfer of control of the Licenses for the Owned Stations from
Seller to Buyer (or to such other entity as designed by Buyer). The parties
shall thereafter prosecute the Commission applications) with all reasonable
diligence and otherwise use their commercially reasonable efforts to obtain the
grants of such applications) as expeditiously as practicable (but no party shall
have any obligation to take any unreasonable steps to satisfy complainants, if
any, which steps would substantially impair or diminish rights under the
Commission Licenses or otherwise impose an unreasonable burden on a party). If
the Commission consent imposes any condition on any party hereto, such party
shall use its commercially reasonable efforts to comply with such condition
unless compliance would be unduly burdensome or would have a material adverse
effect upon Buyer, or materially adversely affects its constituent partners, or
any of its subsidiaries, as appropriate, If reconsideration, review or judicial
review is sought with respect to the Commission consent, Buyer and Seller shall
oppose such efforts for reconsideration, review or judicial review vigorously.
If the Closing shall not have occurred for any reason within the original
effective period of the Commission consent, and if none of the parties hereto
are in breach or default of its obligations, representations, warranties and
covenants or duties hereunder, the parties shall jointly request an extension of
the effective period of the commission consent. Notwithstanding any of the
foregoing, if the Commission consent imposes any condition that would adversely
change (other than a change in reporting requirements that is not
- 9 -
unduly burdensome) or limit the operations of any of the Owned Stations or of
WLOS(TV) or WAXA(TV) after the Closing or require a divestiture of either
WLOS(TV) or WAXA(TV) by Buyer after the Closing, Buyer may, at its option,
terminate this Agreement without any liability or obligation to Seller.
Section 13. Commission Approval. If the Commission has failed
to grant its approval of the Licenses from Seller to Buyer within a period of
sixty (60) months from the date of filing of the applications described herein,
either Seller or Buyer may thereafter terminate this Agreement by giving written
notice to the other; provided, however, that the party desiring to terminate
shall not then be in material breach of this Agreement and have been then
notified in writing by the other party thereof.
Section 14. Remedies of Parties upon Default. If Seller
defaults in the performance of its obligations under this Agreement to complete
the sale to the Buyer as herein set forth, and Buyer shall not be in material
breach, Buyer may terminate this Agreement upon notice in writing to Seller and
shall be entitled to bring an action for damages or specific performance or
both. If Buyer defaults in the performance of its obligations under this
Agreement to complete the purchase from Seller as herein set forth, as and when
herein set forth, and Seller shall not be in material breach, Seller may
terminate this Agreement upon notice in writing to Buyer, and Seller shall be
entitled to bring an action for damages or specific performance or both. In the
event that both Buyer and Seller have defaulted hereunder, and neither party's
default was caused by the inability of such party to perform due to the other
party's default, then either party may terminate this Agreement upon written
notice to the other without any further liability to each other. Neither Buyer,
on the one hand, nor Seller, on the other hand, may rely on the failure of any
condition precedent set forth herein to be satisfied if such failure was caused
by such party's (or parties') failure to act in good faith, or a breach of or
failure to perform its representations, warranties, covenants or other
obligations in accordance with the terms hereof.
Section 15. Damage to Company's Properties. In the event of
any material damage to the Owned Stations or any of the Company's assets by
reason of fire or other casualty or incident occurring between the date hereof,
and the Closing Date, Seller shall give Buyer notice of such event. In such
notice, Seller shall indicate its best estimate of the damages, and if
repairable, the length of time required for restoration. Seller shall cause
Company to take all reasonable steps to repair, replace and restore such
property as soon as possible after the loss, and in addition, if repairable,
shall apply any insurance proceeds received because of such loss to such
restoration. In the event of such damage, which is not fully required or
restored
- 10 -
prior to Closing, or if is interrupted such that the regular broadcast signal of
such Owned Station (including its effective radiated power is diminished in any
material respect for a period of 72 continuous hours or more at any time prior
to the Closing Date, Buyer may terminate this Agreement or postpone the Closing
Date for a period of up to 180 days.
Section 16. Closing. The Closing Date, as used throughout this
Agreement, shall take place (subject to the provisions of this Agreement
deferring or permitting the postponement of the Closing) within ten (10) days
after the later of (i) consent of the Commission to the assignment of the
Commission Licenses shall have been granted and shall have become a Final Order,
and (ii) grant by the Commission of any necessary waiver under 47 C.F.R.
ss.73.3555(b) shall have been obtained and such grant shall have become a Final
Order, such date and the place thereof to be selected by Buyer. "Final Order"
means an action or order by the Commission (a) that has not been reversed,
stayed, enjoined, not aside, annulled or suspended,, and (b) with respect to
which (i) no requests have been filed for administrative or judicial review,
reconsideration, appeal or stay and the Commission has not initiated a review of
such action or order on its own notion and the periods provided by statute or
commission regulations for filing any such requests and for the commission to
set aside the action on its own motion have expired, or (ii) in the event of
review, reconsideration or appeal, the period provided by statute or commission
regulations for further review, reconsideration or appeal has expired.
Section 17. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or by Federal Express or other comparable nationally recognized
courier service (receipt requested) or by facsimile transmission, telexed or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice; provided that notices of a change
of address shall be effective only upon receipt thereof):
To South Carolina:
------------------
Keymarket Communications, Inc.
2743 Perimeter Parkway
Building 100, Suite 250
Augusta, Georgia 30909
Attention: Mr. Donald J. Alt
Telephone: (706) 855-0555
Telecopy: (706) 855-1955
copies to:
---------
- 11 -
Joel B. Piassick, Esq.
Kilpatrick & Cody
1100 Peachtree Street
Suite 2800
Atlanta, Georgia 30309
Telephone: (404) 815-6527
Telecopy: (404) 815 6555
Mr. Richard A. Churchill
MC Partners
75 State Street
Suite 2500
Boston, Massachusetts 02109
Telephone: (617) 345-7200
Telecopy: (617) 345-7201
Bruce E. Rogoff, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Telephone: (617) 542-6000
Telecopy: (617) 542-2241
To Buyer:
--------
c/o River City Broadcasting, L.P.
1215 Cole Street
St. Louis, Missouri 63106
Attention: Mr. Larry D. Marcus
Telephone: (314) 259-5700
Telecopy: (314) 259-5709
Copies to:
John T. Byrnes, Esq.
Dow, Lohnes & Albertson
1255 23rd Street, N.W.
Suite 500
Washington, D.C. 20037
Telephone: (202) 857-2518
Telecopy: (202) 857-2900
Section 18. Survival. Notwithstanding any investigation made
by either Buyer or Seller, all covenants, agreements, representations and
warranties contained in this Agreement, and in any other instruments which may
be delivered pursuant hereto or in connection with the transactions contemplated
hereby, shall be deemed to be material and to have been relied upon by Buyer or
Seller, as applicable, but the representations and warranties of the parties
made herein shall not survive the Closing and the consummation of the
transactions
- 12 -
contemplated by this Agreement; provided that nothing herein shall affect
Buyer's rights under that certain Asset Purchase Agreement dated as of March __,
1995, by and among Buyer, Seller and certain affiliated entities of Seller (the
"Purchase Agreement").
Section 19. Commissions. Except for any fee payable to Star
Media Group, Inc. pursuant to a Letter Agreement among Sellers and Star Media
Group, Inc. dated June 1, 1994, which fees shall be paid by Seller or his
affiliates, Buyer and Seller represent and warrant that neither it or its
affiliates nor any person or entity acting on its behalf has incurred any
liability for any finders, or brokers' fees or commissions in connection with
the transaction contemplated by this Agreement. Buyer agrees to indemnify and
hold harmless Seller against any fee, commission, loss or expense arising out of
any claim by any other broker or finder employed or alleged to have been
employed by Buyer, and Seller agrees to indemnify and hold harmless Buyer
against any fee, commission, loss or expense arising out of any claim by any
other broker or finder employed or alleged to have been employed by any Seller.
Section 20. Further Assurances. Subject to the terms and
conditions of this Agreement, each of the parties hereto will use all
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consulate and make effective the sale
contemplated by this Agreement. From time to time after the Closing Date,
without further consideration, Seller will, at Seller's expense, execute and
deliver, or cause to be executed and delivered, such documents to Buyer as Buyer
may reasonably request in order to more effectively vest in Buyer good title to
the shares and to evidence the representations and warranties of Seller. From
time to time after the Closing Date, without further consideration, Buyer will,
at Buyer's expense, execute and deliver such documents to Seller as Seller may
reasonably request in order to more effectively consummate the sale of the
shares pursuant to this Agreement.
Section 21. Amendment and Modification. This Agreement may be
amended, modified or supplemented only by written agreement of Seller and Buyer.
Section 22. Waiver of Compliance; Consents. Except as
otherwise provided in this Agreement, any failure of any of the parties to
comply with any obligation, representation, warranty, covenant, agreement or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
representation, warranty, covenant, agreement or
- 13 -
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing in a
manner consistent with the requirements for a waiver of compliance as set forth
in this Section 22.
Section 23. Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
provided for herein, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either Buyer or Sellers hereto
without the prior written consent of the other party.
The parties agree as follows:
(a) Without the consent of Seller, Buyer may assign
all or any of the rights and obligations under this Agreement to any other
party. Furthermore, to the extent this Agreement is assigned by Buyer in
accordance with the terms of this Section 23 to a party that is not an affiliate
of Buyer, upon such assignment Buyer shall have no further obligations under
this Agreement and Seller's only recourse under this Agreement shall be against
such assignee of Buyer.
(b) Except as expressly provided herein, this
Agreement is not intended to, and shall not, confer upon any other person except
the parties hereto any rights or remedies hereunder.
Section 24. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF MISSOURI (BUT NOT THE LAWS PERTAINING TO CHOICE OF LAW)
AS TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO MATTERS OF VALIDITY,
CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES.
Section 25. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 26. Headings. The article and section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the parties and shall not in any way affect the meaning
or interpretation of this Agreement.
Section 27. Entire Agreement. This Agreement and the documents
delivered pursuant to the Agreement, the Loan Agreement and the Option Agreement
dated as of between Buyer and Seller, and the Purchase Agreement, embody the
entire agreement
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and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement. This Agreement supersedes all prior
negotiations, agreements and understandings between the parties with respect to
the transactions contemplated by this Agreement and all letters of intent and
other writings executed prior to the date hereof relating to such negotiations,
agreements and understandings; provided that nothing herein shall affect the
provisions of the Loan Agreement, the Option Agreement or the Purchase
Agreement;
Section 28. Severability. If any provision of this Agreement
or the application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the greatest
extent possible.
Section 29. Press Releases. No press releases or other public
announcements concerning this Agreement or the transactions contemplated hereby
shall be made by any party hereto without the prior written consent of the other
party unless the first such party is legally compelled to do so.
Section 30. Publicity. Neither Seller nor Buyer shall make or
issue or cause to be made or issued, any announcement (written or oral)
concerning this Agreement or the transactions contemplated hereby for
dissemination to the general public without the prior consent of the other
party. This provision shall not apply, however, to any announcement or written
statement required to be made by law or the regulations of any federal or state
governmental agency or any stock exchange, except that the party required to
make such announcement shall provide a draft copy thereof to the other party
hereto, and consult with such other party concerning the timing and content of
such announcement, before such announcement is made.
Section 31. Control of the Stations. Prior to the Closing,
Buyer shall not, directly or indirectly, control, supervise or direct, or
attempt to control, supervise or direct, the operation of the Owned Stations;
such operation, including complete control and supervision of all of each Owned
Station's
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programs, employees and policies,, shall be the sole responsibility of Seller
and the Company.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
KEYMARKET OF SOUTH CAROLINA, INC.
By:
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Name:
Title:
RIVER CITY BROADCASTING, L.P.
By: Better Communications, Inc.
General Partner
By:
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Name:
Title: