Exhibit 10.14
ASSET PURCHASE AGREEMENT
by and among
ONE-ON-ONE SPORTS LICENSE OF FLORIDA, L.L.C.,
ONE-ON-ONE SPORTS RADIO OF FLORIDA, L.L.C.
and
RADIO UNICA CORP.
for
RADIO STATIONS
WNMA(AM) 1210 kHz and WCMQ (AM) 1700 kHz
MIAMI SPRINGS, FLORIDA
dated as of
January 26, 1998
TABLE OF CONTENTS
Page
RECITALS ...................................................................................1
ARTICLE 1. DEFINITIONS AND REFERENCES............................................1
ARTICLE 2. SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
ADJUSTMENTS; ASSUMPTION OF LIABILITY..................................6
2.1. Asset Sale and Purchase of Assets.....................................6
2.1(a) FCC Licenses............................................6
2.1(b) Real Property...........................................7
2.1(c) Tangible Personal Property..............................7
2.1(d) Intellectual Property...................................7
2.1(e) Contracts...............................................7
2.1(f) Files and Records.......................................7
2.1(g) Third-Party Claims......................................7
2.1(h) Permits and Licenses....................................7
2.2. Excluded Assets.......................................................7
2.2(a) Third Party Claims......................................8
2.2(b) Personal Property Disposed Of...........................8
2.2(c) Insurance...............................................8
2.2(d) Certain Books and Records...............................8
2.2(e) Rights under this Agreement.............................8
2.2(f) Excluded Contracts......................................8
2.2(g) Cash, Receivables and Cash Equivalents..................8
2.2(h) Intellectual Property...................................8
2.2(i) Off-Site Equipment......................................8
2.2(j) Excluded Transmitter Site Equipment.....................9
2.2(k) RASR TBA Related Equipment..............................9
2.3. Consideration.........................................................9
2.4. Payment of Purchase Price.............................................9
2.5. Adjustments...........................................................9
2.6. Assumption of Liabilities............................................10
ARTICLE 3. REPRESENTATIONS AND WARRANTIES BY SELLERS............................11
3.1. Organization and Standing............................................11
3.2. Authorization........................................................11
3.3. Compliance with Laws.................................................11
3.4. Required Consents; No Conflicts......................................12
3.5. Absence of Litigation................................................12
3.6. Ownership and Condition of Assets....................................12
3.6(a) Owned Real Property....................................12
3.6(b) Leased Real Property...................................12
3.6(c) Personal Property......................................15
3.7. FCC Matters..........................................................15
3.8. Intellectual Property................................................16
3.9. Reports and Records..................................................16
3.10. Material Contracts; Scheduled Contracts..............................16
3.11. Taxes................................................................16
3.12. Labor Relations; Employee Benefits...................................17
3.13. Environmental Matters................................................17
3.14. Insurance............................................................18
3.15. Disclosure...........................................................18
ARTICLE 4. REPRESENTATIONS AND WARRANTIES BY BUYER..............................18
4.1. Organization and Standing............................................18
4.2. Authorization........................................................19
4.3. Required Consents; No Conflicts......................................19
4.4. Absence of Litigation................................................19
4.5. Qualification of Buyer...............................................20
4.6. Disclosure...........................................................20
ARTICLE 5. PRE-CLOSING FILINGS AND UNDERTAKINGS.................................20
5.1. Applications for FCC Consent.........................................20
5.2. Sharing Information..................................................20
5.3. Environmental Reports................................................21
ARTICLE 6. COVENANTS AND AGREEMENTS OF SELLERS..................................21
6.1. Negative Covenants...................................................21
6.1(a) Dispositions; Mergers..................................22
6.1(b) Additional Agreements..................................22
6.1(c) Contract Breaches......................................22
6.1(d) Actions Affecting FCC Licenses or Contracts............22
6.2. Affirmative Covenants................................................22
6.2(a) Normal Operations......................................22
6.2(b) FCC Matters............................................22
6.2(c) Actions................................................22
6.2(d) Transfer Tax: Bulk Sales...............................23
6.2(e) Access.................................................23
6.2(f) Encumbrances...........................................23
6.2(g) Insurance..............................................23
6.2(h) Violations.............................................23
6.2(i) Interruption in Broadcast Operations...................23
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6.2(j) Environmental Matters..................................23
6.2(k) Consents...............................................24
6.2(l) Updating...............................................24
6.2(m) Consents of Lenders....................................24
6.3. Confidentiality......................................................24
ARTICLE 7. COVENANTS AND AGREEMENTS OF BUYER....................................25
7.1. Confidentiality......................................................25
7.2. Actions..............................................................25
7.3. Access...............................................................25
7.4. Notice of Certain Events.............................................26
7.5 Buyout Payment.......................................................26
ARTICLE 8. MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLERS AND BUYER.................................................26
8.1. Possession and Control...............................................26
8.2. Risk of Loss.........................................................26
8.3. Allocation of Purchase Price.........................................27
8.4. Public Announcements.................................................27
8.5. Employee Matters.....................................................27
8.6. Unwind Agreement.....................................................28
8.7 Time Brokerage Agreement.............................................28
ARTICLE 9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION
TO CLOSE.............................................................28
9.1. Representations and Covenants........................................28
9.2. Consents.............................................................29
9.3. Delivery of Documents................................................29
9.4. FCC Consent..........................................................29
9.5. Legal Proceedings....................................................29
9.6. Estoppel Certificates................................................29
9.7. Time Brokerage Agreement.............................................29
ARTICLE 10. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION
TO CLOSE.............................................................30
10.1. Representations and Covenants........................................30
10.2. Delivery by Buyer....................................................30
10.3. FCC Consent..........................................................30
10.4. Legal Proceedings....................................................30
10.5. Time Brokerage Agreement.............................................30
ARTICLE 11. THE CLOSING..........................................................31
11.1. Closing..............................................................31
iii
11.2. Delivery by Sellers..................................................31
11.2(a) Contracts, Agreements and Instruments..................31
11.2(b) Consents...............................................31
11.2(c) UCC Report.............................................31
11.2(d) Certified Consents.....................................32
11.2(e) Members' Certificates..................................32
11.2(f) Sellers' IRS Form 8594.................................32
11.2(g) Expense Payment........................................32
11.2(h) Opinions of Counsel....................................32
11.2(i) Unwind Agreement.......................................32
11.2(j) Other Documents........................................32
11.3. Delivery by Buyer....................................................33
11.3(a) Purchase Price Payment.................................33
11.3(b) Buyer Documents........................................33
11.3(c) Certified Resolutions and Corporate Documents..........33
11.3(d) Officers' Certificate..................................33
11.3(e) Buyer's IRS Form 8594..................................33
11.3(f) Expense Payment........................................33
11.3(g) Opinion of Counsel.....................................33
11.3(h) Unwind Agreement.......................................33
11.3(i) Buyout Payment.........................................33
11.3(j) Other Documents........................................34
ARTICLE 12. SURVIVAL; INDEMNIFICATION............................................34
12.1. Survival of Representations..........................................34
12.2. Indemnification by Sellers...........................................34
12.3. Indemnification by Buyer.............................................35
12.4. Conditions of Indemnification........................................35
ARTICLE 13. TERMINATION..........................................................37
13.1. Termination..........................................................37
13.2. Effect of Termination................................................38
ARTICLE 14. REMEDIES.............................................................38
14.1. Default by Sellers...................................................38
14.2. Default by Buyer.....................................................38
14.3. Specific Performance.................................................39
14.4. Remedies Not Exclusive...............................................39
ARTICLE 15. GENERAL PROVISIONS...................................................39
15.1. Further Assurances...................................................39
15.2. Mail.................................................................40
15.3. Brokers..............................................................40
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15.4. Expenses.............................................................40
15.5. Notices..............................................................40
15.6. Waiver...............................................................42
15.7. Benefit and Assignment...............................................42
15.8. Entire Agreement; Amendment..........................................43
15.9. Severability.........................................................43
15.10. Headings.............................................................43
15.11. Governing Law........................................................43
15.12. Signature in Counterparts............................................43
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered
into as of the 26th day of January, 1998 by and among ONE-ON-ONE SPORTS LICENSE
OF FLORIDA, L.L.C., a Delaware limited liability company ("One-On-One License"),
ONE-ON-ONE SPORTS RADIO OF FLORIDA, L.L.C., a Delaware limited liability company
("One-On-One Radio") (One-On-One License and One-On-One Radio are collectively
referred to herein as "Sellers"), and RADIO UNICA CORP., a Delaware corporation
("Buyer").
RECITALS
WHEREAS, One-On-One License is the licensee of radio station
WNMA(AM), Miami Springs, Florida, operating at 1210 kHz, and the permitee of
radio station WCMQ(AM), Miami Springs, Florida, operating at 1700 kHz
(collectively referred to herein as the "Station"); and
WHEREAS, One-On-One License is a subsidiary of One-On-One
Radio; and
WHEREAS, Sellers wish to sell, and Buyer wishes to buy, all of
the assets used or useful in connection with the ownership and operation of the
Station, other than the Excluded Assets (as defined below), all in accordance
with and subject to the terms and conditions set forth below; and
WHEREAS, One-On-One Radio and Buyer are simultaneously
entering into that certain Time Brokerage Agreement dated as of the date hereof
(the "TBA"), whereby One-On-One Radio shall make available to Buyer
substantially all of the broadcasting time on the Station's operations at 1210
kHz from the Operational Commencement Date (as defined in the TBA) through and
including the Closing Date (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Unless the context otherwise specifies or requires, terms used
herein shall have the respective meanings assigned thereto as follows (such
definitions to be equally applicable to both the singular and plural forms of
the terms defined). Unless otherwise specified, all references herein to
"Articles" or "Sections" are to Articles or Sections of this Agreement.
Additional Agreements means any and all Contracts, agreements
and leases executed and delivered by Sellers between the date hereof and the
Closing Date.
Adjustment Date shall have the meaning specified in Section
2.5.
Affiliate means, as to any entity, any other entity which
owns, is owned by or is under common control with such entity.
Assets shall have the meaning specified in Section 2.1.
Assignment Applications shall have the meaning specified in
Section 5.1.
Assignment of Contracts means an Assignment of Contracts,
dated as of the Closing Date and executed by Sellers, in form and substance
reasonably satisfactory to Buyer and Sellers with respect to Contracts as to
which consents have been obtained pursuant to Section 6.2(k).
Assignment of Leases means an Assignment of Leases, dated as
of the Closing Date and executed by Sellers, in form and substance reasonably
satisfactory to Buyer and Sellers.
Assignment of FCC Licenses means an Assignment of FCC
Licenses, dated as of the Closing Date and executed by Sellers, in form and
substance reasonably satisfactory to Buyer and Sellers.
Assumed Liabilities means the Scheduled Contracts and the
Additional Agreements, and any liabilities and agreements assumed by Buyer
hereunder.
Bill of Sale means a Bill of Sale and Assignment of Assets,
dated as of the Closing Date and executed by Sellers, in form and substance
reasonably satisfactory to Buyer and Sellers.
Buyer Documents means, collectively, this Agreement and any
other agreement to be executed and delivered by Buyer hereunder or as otherwise
contemplated herein.
Buyer Indemnified Parties shall have the meaning specified in
Section 12.2.
Buyout Payment shall have the meaning specified in Section
7.5.
Closing means the closing of the purchase and sale of the
Assets (other than the Excluded Assets) and the assumption of the Assumed
Liabilities.
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Closing Date means the time and date on which the Closing
takes place, as established by Section 11.1.
Code means the Internal Revenue Code of 1986, as amended.
Communications Act means the Communications Act of 1934, as
amended, and the rules and regulations of the FCC promulgated pursuant thereto.
Contracts shall have the meaning specified in Section 2.1(e).
Encumbrances means any mortgages, pledges, liens, claims,
security interests, agreements, restrictions, defects in title, easements or
encumbrances.
Environmental Laws means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. ss.
9601 et seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. ss. 2601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. ss. 1802 et seq.;
the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. ss. 9601 et seq.;
the Clean Water Act ("CWA"), 33 U.S.C. ss. 1251 et seq.; the Safe Drinking Water
Act, 42 U.S.C. ss. 300f et seq.; the Clean Air Act ("CAA"), 42 U.S.C. ss. 7401
et seq.; or any other applicable federal, state, or local laws, regulations,
ordinances, decrees, rules, judgments, orders or directives now or hereinafter
in effect relating to the protection of human health, safety or the environment,
or otherwise relating to Hazardous Materials generation, production, use,
storage, treatment, transportation or disposal.
ERISA mean Employee Retirement Income Security Act of 1974, as
amended.
Escrow Agent shall have the meaning specified in Section
2.4(a).
Escrow Agreement shall have the meaning specified in Section
2.4(a).
Escrow Deposit shall have the meaning specified in Section
2.4(a).
Excluded Assets shall have the meaning specified in Section
2.2.
FAA means the Federal Aviation Administration.
FCC means the Federal Communications Commission.
FCC Consent means an order or orders of the FCC consenting to
the assignment to Buyer of the FCC Licenses for the Station.
3
FCC Licenses shall have the meaning specified in Section
2.1(a).
Final Order means an FCC Consent as to which the time for
filing a request for administrative or judicial review, or for instituting
administrative review sua sponte, shall have expired without any such filing
having been made or notice of such review having been issued; or, in the event
of such filing or review sua sponte, as to which such filing or review shall
have been disposed of favorably to the grant and the time for seeking further
relief with respect thereto shall have expired without any request for such
further relief having been filed.
GAAP means generally accepted accounting principles.
Governmental Approvals shall have the meaning specified in
Section 3.6(b).
Governmental Authority means any agency, board, bureau, court,
commission, department, instrumentality or administration of the United States
government, any state government or any local or other governmental body in a
state of the United States or the District of Columbia.
Hazardous Materials means any wastes, substances, or materials
(whether solids, liquids or gases) that are defined or regulated as hazardous or
toxic under any Environmental Law, including without limitation, substances
defined as "hazardous wastes," "hazardous substances," "toxic substances,"
"radioactive materials," or other similar designations in any Environmental
Laws. "Hazardous Materials" includes, without limitation, polychlorinated
biphenyls (PCBs), asbestos, lead-based paints and petroleum and petroleum
products.
Indemnified Party and Indemnifying Party shall have the
respective meanings specified in Section 12.4(a).
Intellectual Property shall have the meaning specified in
Section 2.1(d).
IRS means the Internal Revenue Service.
Leased Improvements shall have the meaning specified in
Section 3.6(b).
Leased Real Property shall have the meaning specified in
Section 3.6(b).
Leases shall have the meaning specified in Section 3.6(b).
Losses means any and all demands, claims, complaints, actions
or causes of action, suits, proceedings, investigations, arbitrations,
assessments, losses, damages (including diminution in value), liabilities,
obligations (including those arising out of any action, such as any settlement
or compromise thereof or judgment or award therein) and any costs and
4
expenses, including, without limitation to, interest, penalties and reasonable
attorneys' fees and disbursements.
Material Adverse Effect means, except as otherwise
specifically provided herein, any event or condition which has a material
adverse effect (financial or otherwise) on the Assets, other than the Excluded
Assets, to be acquired hereunder, taken as a whole.
Material Contracts means those Scheduled Contracts that are
designated as Material Contracts in Schedule 2.1(e).
Ordinary Course of Business means, with respect to Sellers,
the ordinary course of business consistent with past practices of Sellers.
Permitted Encumbrances means (a) easements that do not
materially adversely affect the full use and enjoyment of the Real Property for
the purposes for which it is currently used or detract from the value of the
Real Property in any material respect; (b) imperfections of title and
non-consensual encumbrances, if any, which, in the aggregate, do not detract
from the marketability or value of the properties subject thereto in any
material respect and do not impair the operations of the owner thereof; (c)
liens for taxes not yet due and payable; and (d) liens of Sellers' lenders, all
of which shall be removed at the Closing.
Purchase Price shall have the meaning specified in Section
2.3.
RASR TBA means that certain Time Brokerage Agreement, dated as
of September 29, 1997, by and between One-On-One Radio and RASR, L.L.C.
Real Property shall have the meaning specified in Section
2.1(b).
Scheduled Contracts means those Contracts listed or described
in Schedule 2.1(e).
Sellers' Indemnified Parties shall have the meaning specified
in Section 12.3.
Sellers' Tax Returns means all federal, state, local, foreign
and other applicable Tax returns and declarations of estimated Tax reports
required to be filed by Sellers.
Station shall have the meaning set forth in the recitals.
Taxes means all federal, state and local taxes (including,
without limitation, income, profit, franchise, sales, use, real property,
personal property, ad valorem, excise, employment, social security and wage
withholding taxes) and installments of estimated taxes, assessments,
deficiencies, levies, imports, duties, license fees, registration fees,
withholdings,
5
or other similar charges of every kind, character or description imposed by any
Governmental Authorities, and any interest, penalties or additions to tax
imposed thereon or in connection therewith.
TBA shall have the meaning set forth in the recitals.
Transaction Documents means, collectively, this Agreement, the
Assignment of Leases, the Bill of Sale, the Assignment of FCC Licenses, the
Assignment of Contracts and any other agreements to be executed and delivered by
any Sellers hereunder or as otherwise contemplated herein.
Transmitter Site shall mean that leased site located at 14025
Northwest 102 Avenue Miami Springs, Florida. (Lots 18, 19 and 20 in the SE 1/4
section 20-52-40 Chambers Land Company Subdivision).
WARN Act shall have the meaning specified in Section 8.5.
ARTICLE 2.
SALE AND PURCHASE OF ASSETS; PURCHASE PRICE;
ADJUSTMENTS; ASSUMPTION OF LIABILITY
2.1. Asset Sale and Purchase of Assets.
Subject to the terms and conditions hereof and in reliance
upon the representations, warranties, covenants and agreements contained herein,
at the Closing, Sellers shall sell, assign, transfer, convey and deliver to
Buyer, and Buyer agrees to purchase from Sellers, all of Sellers' right, title
and interest in the following property, free and clear of all mortgages,
security interests, liens or similar claims by third parties (other than
Permitted Encumbrances), but excluding the Excluded Assets described in Section
2.2 (collectively, the "Assets"). Subject to the provisions of Sections 2.2 and
6.1(a), Assets shall include all such assets (excluding the Excluded Assets)
existing on the date hereof and all such assets acquired between the date hereof
and midnight (Eastern Time) on the date immediately preceding the Closing Date.
The Assets shall consist of all of Sellers' right, title and
interest in, to and under the following:
2.1(a) FCC Licenses. All licenses, permits and other
authorizations issued by the FCC to Sellers for the operation of the Station
(the "FCC Licenses"), including without limitation those listed or described in
Schedule 2.1(a), and all applications therefor, together with any renewals,
extensions or modifications thereof and additions thereto;
6
2.1(b) Real Property. All realty, fixtures, easements, rights
of way, leasehold interests in real estate, buildings and improvements,
including any undivided interest in any of the foregoing, located at or
pertaining to the Transmitter Site ("Real Property"), including but not limited
to those listed or described in Schedule 2.1(b);
2.1(c) Tangible Personal Property. All of the furniture,
fixtures, furnishings, machinery, computers, equipment (mobile or otherwise),
inventory, supplies, antenna installations, towers, office materials and other
tangible property located at the Transmitter Site used or useful in the
operation of the Station (it being expressly acknowledged that no studio
facility is used by the Station or is being conveyed to Buyer), including but
not limited to the property listed or described in Schedule 2.1(c), but
excluding the property listed or described in Schedule 2.2(j);
2.1(d) Intellectual Property. All of Sellers' rights in and to
the call letters of the Station(the "Intellectual Property"), and all goodwill
associated therewith, which are listed or described in Schedule 2.1(d);
2.1(e) Contracts. The contracts, commitments, plans,
agreements, leases, arrangements, undertakings and licenses, including
Additional Agreements, which relate to the ownership, operation, business or use
of the Station or any of the Assets (collectively, "Contracts"), which are
listed or described in Schedule 2.1(e);
2.1(f) Files and Records. All engineering, business and other
books, customer lists, papers, logs, files and records pertaining to the Assets,
including without limitation all records required by the FCC to be kept by the
Station;
2.1(g) Third-Party Claims. All rights and claims of Sellers
whether mature, contingent or otherwise, against third parties relating to the
Assets (other than the Excluded Assets), whether in tort, contract, or
otherwise, under or pursuant to all warranties, representations and guarantees
made by manufacturers, suppliers or vendors; and
2.1(h) Permits and Licenses. All permits, approvals, orders,
authorizations, consents, licenses, certificates, franchises, exemptions of, or
filings or registrations with, any court or Governmental Authority (other than
the FCC) in any jurisdiction, which have been issued or granted to or are owned
or used by Sellers in connection with the business and operation of the Station
and ownership of the Assets and all pending applications therefor.
2.2. Excluded Assets.
Notwithstanding anything to the contrary in this Agreement,
there shall be excluded from the Assets and retained by Sellers, to the extent
in existence at midnight (Eastern Time) on the date immediately preceding the
Closing Date, all assets not specified in Section 2.1, including the following
assets (collectively, the "Excluded Assets"):
7
2.2(a) Third Party Claims. All rights and claims of Sellers,
including any Affiliate thereof, against third parties relating to Taxes and to
property or equipment repaired, replaced or restored by Sellers prior to the
Closing;
2.2(b) Personal Property Disposed Of. All tangible personal
property disposed of in the Ordinary Course of Business as permitted by this
Agreement;
2.2(c) Insurance. All contracts of insurance and any life
insurance plans and the assets thereof, including, without limitation, prepaid
insurance expenses; and all insurance proceeds or claims of Sellers relating to
property or equipment repaired, replaced or restored by Sellers prior to the
Closing;
2.2(d) Certain Books and Records. All of (i) duplicated copies
of any books, records, accounts, checks, payment records, Tax records (including
payroll, unemployment, real estate and other Tax records) and other similar
books, records and information of the Sellers relating to the Assets, (ii) all
records prepared by or on behalf of Sellers in connection with the sale of the
Station, (iii) all records and documents relating to any Excluded Assets, and
(iv) all records and documents not related to the Assets or the operation of the
Station;
2.2(e) Rights under this Agreement. All of the Sellers' rights
under or pursuant to this Agreement or any other rights in favor of Sellers
pursuant to the other agreements contemplated hereby;
2.2(f) Excluded Contracts. All Contracts that have terminated
or expired prior to the Closing in the Ordinary Course of Business or as
otherwise permitted by this Agreement and all contracts, commitments, plans,
agreements, leases, arrangements, undertakings and licenses not identified in
Schedule 2.1(e), including, without limitation, all employment agreements;
2.2(g) Cash, Receivables and Cash Equivalents. All cash,
inter-company receivables, account receivables, note receivables, bank deposits,
prepayments, overpayments, other cash equivalents and/or investment securities;
2.2(h) Intellectual Property. The name "One-On-One Sports" or
any derivation thereof;
2.2(i) Off-Site Equipment. All tangible personal property not
located at the Transmitter Site, including (i) any studio equipment and (ii) all
furniture, fixtures, furnishings, machinery, computers, equipment, inventory,
supplies, materials and other tangible property at the Station's office located
at 14645 N.W. 77th Avenue, Suite 102, Miami Lakes, Florida 33014;
8
2.2(j) Excluded Transmitter Site Equipment. All satellite
remote equipment relating to the Station, including, without limitation, all
equipment listed or described on Schedule 2.2(j); provided, that, at Buyer's
option, such satellite remote equipment (other than the Starguide satellite
receivers and the Potomac instruments 1901-3 antenna monitor) shall be included
in the Assets and the Purchase Price shall be increased by an amount equal to
Seventeen Thousand Dollars ($17,000); and
2.2(k) RASR TBA Related Equipment. All equipment paid for or
reimbursed by RASR, L.L.C. pursuant to the RASR TBA.
2.3. Consideration.
The consideration for the conveyance and assignment of the
Assets described herein, in addition to the assumption of Assumed Liabilities by
Buyer as set forth in Section 2.6 (the "Purchase Price"), shall be Nine Million
Dollars ($9,000,000), as adjusted pursuant to Section 2.5.
2.4. Payment of Purchase Price.
(a) Upon the execution of this Agreement, Buyer shall deposit
the amount of One Million Dollars ($1,000,000) into escrow (the "Escrow
Deposit"). The total Escrow Deposit shall be held by The Chase
Manhattan Bank (together with any successor thereto, the "Escrow
Agent") pursuant to the terms and conditions of the escrow agreement
executed on the date hereof (the "Escrow Agreement") in the form of
Exhibit A hereto. At the Closing, the Escrow Deposit shall be paid by
Escrow Agent to Sellers and credited to the Purchase Price at Closing
and the interest earned thereon shall be paid to Buyer. If the Closing
does not occur due to the reason specified in Section 14.2 hereof, the
total Escrow Deposit, together with any interest earned thereon, shall
be paid to Sellers as liquidated damages as specified in Section 14.2.
If the Closing does not occur for any other reason, the total Escrow
Deposit, together with any interest earned thereon, shall be returned
to Buyer.
(b) Eight Million Dollars ($8,000,000), plus or minus any
adjustments or increases made pursuant to Section 2.2(j) or 2.5, shall
be paid by the Buyer on the Closing Date by wire transfer of
immediately available funds to such bank or other financial institution
as shall be designated by Sellers at least one (1) business day prior
to the Closing Date.
2.5. Adjustments.
The operation of the Station and the normal operating expenses
attributable thereto through midnight of the day immediately preceding the
Closing Date (the "Adjustment Date") shall be for the account of Sellers and
thereafter for the account of Buyer, and all such
9
expenses (other than expenses excluded from Assumed Liabilities, none of which
shall be payable by the Buyer) shall be allocated, charged or prorated
accordingly. Expenses for goods or services received both before and after the
Adjustment Date, power and utilities charges, frequency discounts, commissions,
license fees, and rents and similar prepaid and deferred items shall be prorated
between Sellers and Buyer as of the Adjustment Date in accordance with GAAP. All
property taxes, special assessments and similar charges or liens imposed against
the Real Property and personal property attributable to any period of time up to
and including the Adjustment Date, whether payable in installments or otherwise,
shall be the responsibility of Sellers, and amounts payable with respect to such
special assessments, charges or liens attributable to any period of time after
the Adjustment Date shall be the responsibility of Buyer, and such charges shall
be adjusted as required hereunder. As of the Closing Date, the Sellers shall
calculate the aggregate positive or negative balance, as the case may be, with
respect to all trade and barter agreements that constitute Scheduled Contracts
or Additional Agreements entered into in accordance with Section 6.1(b). To the
extent that any of the foregoing prorations and adjustments cannot be determined
as of the Closing Date, Buyer and Sellers shall conduct a final accounting and
make any further payments, as required on a date mutually agreed upon, within
ninety (90) days after the Closing and the net amount, if any, due to or due
from Buyer as the result of such prorations and adjustments shall be paid to or
by Buyer, as the case may be, within fifteen (15) business days following such
final accounting.
2.6. Assumption of Liabilities.
2.6(a) At the Closing, Buyer shall assume and become liable
for the following: (i) the liabilities and obligations of Sellers attributable
to all periods after the Adjustment Date under the Scheduled Contracts and (ii)
the liabilities and obligations of Sellers attributable to all periods after the
Adjustment Date under any Additional Agreements entered into after the date
hereof in compliance with Section 6.1(b).
2.6(b) Except for (i) those liabilities and obligations
expressly assumed by Buyer pursuant to Section 2.6(a) hereof, (ii) those
liabilities for which Buyer has received a credit under Section 2.5, and (iii)
liabilities and obligations of Sellers arising under Contracts (exclusive of
Additional Agreements) which are not Scheduled Contracts but which Buyer, in its
sole discretion, elects to assume on or after the Closing Date, Buyer shall have
no responsibility for any liabilities or obligations of any kind or description
whether connected with the business and operations of the Station or the
Sellers, including to any employee of Sellers, or otherwise arising from the
ownership or operation of any of the Assets or the business and operations of
the Station or the Sellers prior to the Closing Date.
2.6(c) After the Closing Date, Sellers shall have no
responsibility (i) for any Assumed Liabilities, (ii) in connection with any
Permitted Encumbrances, or (iii) for any costs that Buyer agrees to assume
pursuant to Section 5.3(c) hereof.
10
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES BY SELLERS
Sellers represent and warrant to Buyer as follows:
3.1. Organization and Standing.
Each Seller is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to carry on its business as now being
conducted. Each Seller has all requisite power and authority to execute and
deliver this Agreement and the other Transaction Documents and to consummate the
transactions contemplated hereby and thereby. Neither the nature of the business
of the Station, nor the character of the properties owned, leased or otherwise
held by Sellers for use in the Station's business makes any qualification
necessary in any other state, country, territory or jurisdiction other than as
set forth in Schedule 3.1 and each Seller is qualified to do business in any
such jurisdictions.
3.2. Authorization.
The execution, delivery and performance of this Agreement and
the other Transaction Documents to be executed and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate or other proceedings on the part of each
Seller and no other corporate or other proceedings or actions on the part of
either Sellers, their respective managers or their respective members is
necessary therefor. This Agreement constitutes, and upon execution and delivery
each other Transaction Document will constitute, a valid and binding agreement
and obligation of each Seller, enforceable in accordance with their respective
terms.
3.3. Compliance with Laws.
Sellers are not in violation of, and have not received any
notice asserting any material noncompliance by Sellers with, any applicable
statute, law, rule or regulation, whether federal, state, local or otherwise, in
connection with the ownership of the Assets. Sellers have complied and are in
compliance, in all material respects, with all laws, regulations and
governmental orders applicable to Sellers' operation of the Station and
ownership of the Assets. Sellers have obtained and hold all permits, licenses
and approvals (none of which has been rescinded and all of which are in full
force and effect) from all Governmental Authorities necessary in order to
conduct the operations of the Station in accordance with applicable law, as
presently conducted and to own, use and maintain the Assets.
3.4. Required Consents; No Conflicts.
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3.4(a) Except as set forth in Schedule 3.4(a) or in connection
with the filings referred to in Section 5.1, the execution, delivery and
performance by Sellers of the Transaction Documents will not require the
consent, approval, authorization or permit of, or filing with, or notification
to any person, entity or Governmental Authority, except the consents of third
parties to the assignment of the Contracts as indicated on Schedule 2.1(e) and
those which would not materially affect Sellers' ability to consummate the
transactions contemplated by this Agreement.
3.4(b) Except as set forth in Schedule 3.4(b), the execution
and delivery of the Transaction Documents, the fulfillment of and the compliance
with the respective terms and provisions of each, and the consummation of the
transactions described in each, do not and will not (i) conflict with or violate
any law, regulation, order, award, judgment, injunction or decree applicable to
or affecting Sellers, the Assets (other than the Excluded Assets) or the
Station, (ii) conflict with or result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under any contract to which either Seller is a party or by which either Seller
is bound or to which any of the Assets or the Station is subject or affected
(except with respect to consents of third parties referred to in Section
3.4(a)), or result in the creation of any Encumbrance upon the Assets, or (iii)
conflict with or violate any provision of either Seller's certificate of
formation or limited liability company agreement, except, in each case, as would
not materially affect Sellers' ability to consummate the transactions
contemplated by this Agreement.
3.5. Absence of Litigation.
Except as set forth and described in Schedule 3.5, there is no
action, suit, investigation, claim, arbitration or litigation pending or, to the
best of Sellers' knowledge, threatened against, affecting or involving the
Assets, the Station or the business and operations of the Station, or the
transactions contemplated by this Agreement or any other Transaction Document,
at law or in equity, or before or by any court, arbitrator or Governmental
Authority, and the Station is not operating under or subject to an order, award,
judgment, writ, decree, determination or injunction of any court, arbitrator or
Governmental Authority.
3.6. Ownership and Condition of Assets.
3.6(a) Owned Real Property. The Sellers own no real property
used in the operation of the Station.
3.6(b) Leased Real Property. All of the real property leased
by Sellers as tenant or lessee is identified on Schedule 2.1(b) (collectively
referred to herein as the "Leased Real Property").
(i) Leases. All of the leases of any of the Leased
Real Property (collectively, the "Leases") are as set forth on Schedule 2.1(b).
The copies of the Leases set
12
forth in Schedule 2.1(b) are complete, accurate, true and correct copies of each
of the Leases. The information with respect to each of the Leases set forth in
Schedule 2.1(b) is complete, accurate, true and correct in all material
respects. With respect to each of the Leases, except as set forth on Schedule
2.1(b):
(A) each of the Leases is in full force and effect
on the terms set forth therein and has not been modified,
amended, or altered, in writing or otherwise;
(B) all obligations of the landlord or lessor
under the Leases that have accrued have been performed, and no
landlord or lessor is in default under or in arrears in the
payment of any sum or in the performance of any obligation
required of it under any Lease, and no circumstance presently
exists which, with notice or the passage of time, or both, would
give rise to a default by the landlord or lessor under any Lease
except, in all such cases, as such as will not materially detract
from the marketability or value of the Leased Real Property and
do not impair the operations of the lessee thereof in any
respect;
(C) all obligations of the tenant or lessee under
the Leases that have accrued have been performed, and Sellers is
not in default under or in arrears in the payment of any sum or
in the performance of any obligation required of it under any
Lease, and no circumstance presently exists which, with notice or
the passage of time, or both, would give rise to a default by
Sellers except, in all such cases, as such as will not materially
detract from the marketability or value of the Leased Real
Property and do not impair the operations of the lessee thereof
in any respect; and
(D) there are no consents of any landlord or
lessor required to transfer the Leased Real Property to Buyer.
(ii) Title and Description. Sellers holds a valid and
enforceable lease hold interest in the Leased Real Property pursuant to the
Leases, subject only to the right of reversion of the landlord or lessor under
the Leases and Permitted Encumbrances.
(iii) Physical Condition. Except as set forth on
Schedule 2.1(b), to Sellers' knowledge, there is no defect in the physical
condition of any improvements located on or constituting a part of the Leased
Real Property (the "Leased Improvements"). To Sellers' knowledge, the Leased
Real Property, including, without limitation, the Leased Improvements, is in
good condition and repair and is adequate for the uses to which it is being put,
and the Leased Real Property is not in need of maintenance or repairs except for
ordinary, routine maintenance and repairs which are not material in nature or
cost. To the best of Sellers' knowledge, the soil condition of the Leased Real
Property is such that it will support all of the improvements thereon for the
foreseeable life of the improvements without the need for unusual or new
subsurface excavations, fill, footings, caissons or other installations.
13
(iv) Utilities. To the best of Sellers' knowledge,
all water, sewer, gas, electric, telephone, drainage and other utility
equipment, facilities and services required by law or necessary for the
operation of the Leased Real Property as it is now improved and operated are
installed and connected pursuant to valid permits, are sufficient to service the
Leased Real Property and are in good operating condition except in such case as
will not materially detract from the marketability or value of the Leased Real
Property and do not impair the operations of the lessee thereof.
(v) Compliance with Law; Government Approvals.
Sellers has received no notice from any Governmental Authority of any violation
of any zoning, building, fire, water, use, health, or other law, ordinance,
code, regulation, license, permit or authorization issued in respect of any of
the Leased Real Property that has not been heretofore corrected, and know of no
such violation or violations that now exist that would materially detract from
the marketability or value of the Leased Real Property or impair the operations
of the lessee thereof in any material respect. To the best of Sellers'
knowledge, improvements located on or constituting a part of the Leased Real
Property and the construction, installation, use and operation thereof
(including, without limitation, the construction, installation, use and
operation of any signs located thereon) are in compliance with all applicable
municipal, state, federal or other governmental laws, ordinances, codes,
regulations, licenses, permits and authorizations, including, without
limitation, applicable zoning, building, fire, water, use or health laws,
ordinances, codes, regulations, licenses, permits and authorizations, and there
are presently in effect all certificates of occupancy, licenses, permits and
authorizations required by law, ordinance, code or regulation or by any
governmental or private authority having jurisdiction over the ownership or
operation of the Sellers' businesses or any of the Assets, including the Station
and the Leased Real Property or any portion thereof, or the occupancy thereof or
any present use thereof, exclusive of the FCC Consents (collectively,
"Governmental Approvals"), except such non-compliance as will not materially
detract from the marketability or value of the Leased Real Property and do not
impair the operations of the lessee thereof in any respect. All Governmental
Approvals required by law, ordinance, code, regulation or otherwise to be held
by the tenant of any of the Leased Real Property shall be transferred to Buyer
at Closing, if and to the extent transferrable. There is legally enforceable
pedestrian and vehicular access to the Leased Real Property.
(vi) Real Property Taxes. Except as set forth in
Schedule 2.1(b), Sellers have received no notice of any pending or threatened
special assessment or reassessment of all or any portion of any of the Leased
Real Property.
(vii) Condemnation. To Sellers' knowledge, there is
no pending or threatened condemnation of all or any part of the Leased Real
Property.
(viii) Insurability. Sellers has not received any
notice from any insur ance company of any material defects or inadequacies in
the Leased Real Property or any part
14
thereof, which would materially, adversely affect the insurability of the same
or of any termination or threatened termination of any policy of insurance.
3.6(c) Personal Property. Schedule 2.1(c) contains a complete
description of all of Sellers' machinery, equipment and other tangible personal
property that is located at the Transmitter Site and is material to the
operation of the Station (other than Excluded Assets) (collectively, the
"Material Equipment"). Sellers have good and marketable title to all of the
Material Equipment. None of such Material Equipment is subject to any mortgage,
pledge, lien, conditional sale agreement, security agreement, encumbrance or
other charge, except for Permitted Encumbrances. The Material Equipment is
sufficient for Buyer to continue the operations of the Station in accordance
with applicable law as conducted by Sellers. Except as otherwise specified in
Schedule 2.1(c), all Material Equipment of Sellers is in good repair and working
order, ordinary wear and tear excepted, and Sellers have maintained all Material
Equipment in compliance with good engineering and customary business practice
and all Material Equipment is otherwise sufficient to permit the Station to
operate in accordance with the FCC Licenses and the rules and regulations of the
FCC.
3.7. FCC Matters.
3.7(a) One-On-One License holds the FCC Licenses set forth and
described on Schedule 2.1(a). The FCC Licenses constitute all of the licenses,
permits and authorizations from the FCC that are necessary or required for
and/or used in the business and operations of the Station. The FCC Licenses are
valid and in full force and effect through the dates set forth on Schedule
2.1(a). Except as set forth on Schedule 2.1(a), no application, action or
proceeding is pending for the renewal or modification of any of the FCC
Licenses, and, except for actions or proceedings affecting radio broadcast
stations generally and the proceedings set forth in Schedule 3.7(a) hereto, no
application, complaint, action or proceeding is pending or, to the best of
Sellers' knowledge, threatened that may result in the (i) denial of an
application for renewal, (ii) the revocation, modification, non-renewal or
suspension of any of the FCC Licenses, (iii) the issuance of a cease-and-desist
order, or (iv) the imposition of any administrative or judicial sanction with
respect to the Station.
3.7(b) The Station, its physical facilities, electrical and
mechanical systems and transmitting equipment (i) are being operated in all
respects in compliance with the specifications of the applicable FCC Licenses,
and (ii) are being operated in compliance in all respects with all requirements
of the Communications Act. Sellers have complied with all requirements of the
FCC and the FAA with respect to the construction and/or alteration of Sellers'
antenna structures, and "no hazard" determinations for each antenna structure
have been obtained.
3.7(c) Sellers and the Station are in compliance with the
Communications Act.
3.7(d) Sellers know of no facts, conditions or events relating
to Sellers or the Station that might cause the FCC to have a legally valid basis
to deny the assignment of the
15
FCC Licenses as provided for in this Agreement or not to renew any of the FCC
Licenses in the ordinary course.
3.8. Intellectual Property.
Except as set forth on Schedule 2.1(d), Sellers pay no royalty
to anyone for use of the Intellectual Property and have the right to bring
action for the infringement thereof to the extent permitted by applicable law.
Sellers do not have any knowledge and have not received any notice to the effect
that their use of the Intellectual Property in their renderings of services
relating to the business of the Stations infringes on any Intellectual Property
right of another. Sellers have the right pursuant to the rules and regulations
of the FCC to the use of the various call letters set forth on Schedule 2.1(d).
3.9. Reports and Records.
All reports, statements and other documents relating to the
Station currently required to be filed by Sellers with the FCC or any other
Governmental Authority in connection with, or as a result of, Sellers' operation
of the Station or ownership of the Assets have been filed and complied with and
were true, correct and complete in all material respects when filed. All such
reports, statements and other documents shall continue to be filed on a current
basis until the Closing Date, and will be true, correct, and complete in all
respects.
3.10. Material Contracts; Scheduled Contracts.
Schedule 2.1(e) contains a listing and true copies of all
Material Contracts as of the date hereof. Except as set forth in Schedule 3.10,
each Scheduled Contract is in full force and effect, and constitutes a legal,
valid and binding obligation of, and is legally enforceable against the
applicable Seller. Except as set forth in Schedule 3.10, each Seller, where
applicable, and, to the best of such Sellers' knowledge, the other parties
thereto, have complied with all of the provisions of such Scheduled Contracts
and are not in default thereunder in any material respect, and there has not
occurred any event which (whether with or without notice or lapse of time) would
constitute such a default. To Sellers' knowledge, except as set forth in
Schedule 3.10, there has not been any threatened cancellation of any Scheduled
Contract or any outstanding dispute thereunder.
3.11. Taxes.
3.11(a) Each Seller has (or, in the case of returns becoming
due after the date hereof and on or before the Closing Date, will have prior to
the Closing Date) duly filed all Sellers' Tax Returns required to be filed by
such Seller on or before the Closing Date with respect to all applicable Taxes
and have paid all Taxes shown to be due on such Sellers' Tax Returns.
16
3.11(b) Except as set forth in Schedule 3.11(b), there is no
action, suit, proceeding, audit, investigation or claim pending or, to Sellers'
knowledge, threatened in respect of any Taxes for which either Seller is liable,
nor, to Sellers' knowledge, has any deficiency or claim for any such Taxes been
proposed, asserted or threatened.
3.12. Labor Relations; Employee Benefits
Sellers are in compliance in all material respects with all
applicable laws and regulations relating to employment at the Station including,
without limitation, provisions relating to wages, hours, collective bargaining,
safety and health, work authorization, equal employment opportunity,
unemployment compensation, workers' compensation and employee benefits. There
are no collective bargaining agreements, employment agreements between Sellers
and their employees not terminable at will or professional service contracts not
terminable at will relating to the Station or the business and operations
thereof. The consummation of the transactions contemplated hereby will not cause
Buyer to incur or suffer any liability relating to, or obligation to pay,
severance, termination, or other payments to any person or entity, or any
liability under any employee benefit plans of Sellers, including, without
limitation, any liability under the Code or ERISA.
3.13. Environmental Matters.
3.13(a) There are no pending or, to the best of Sellers'
knowledge, threatened actions, suits, claims, legal proceedings or other
proceedings based on, and Sellers have not received any notice of any complaint,
order, directive, citation, notice of responsibility, notice of potential
responsibility, or information request from any Governmental Authority arising
out of or attributable to: (i) the presence at any part of the Real Property of
Hazardous Materials; (ii) the release or threatened release into the environment
from the Real Property (including, without limitation, into any storm drain,
sewer, septic system or publicly owned treatment works) of any Hazardous
Materials; (iii) the off-site disposal of Hazardous Materials originating on or
from the Real Property or the Assets of Sellers; (iv) any facility operations or
procedures of Sellers relating to the Station or the Assets that do not conform
to requirements of the Environmental Laws; or (v) any violation of Environmental
Laws at any part of the Real Property or otherwise arising from any of Sellers'
activities relating to the Station or the Assets involving Hazardous Materials.
3.13(b) Each Seller is in compliance, in all material
respects, with all applicable Environmental Laws, including having obtained and
maintained all permits, licenses, certificates, and approvals required under any
Environmental Law. A true and complete list of all such permits, licenses,
certificates and approvals, all of which are valid and in full force and effect,
is set out in Schedule 3.13(b).
3.13(c) To the best of Sellers' knowledge, there have been no
releases of Hazardous Materials on, at, in, under or from the Real Property that
would require investigation and/or remediation under any applicable
Environmental Law.
17
3.13(d) Other than in compliance with the Communications Act,
the operation of the Station does not cause or result in exposure of workers or
the general public to levels of radio frequency radiation in excess of the
"Radio Frequency Protection Guides" recommended in "American National Standard
Safety Levels with Respect to Human Exposure to Radio Frequency Electromagnetic
Fields 300 kHz to 100 gHz" (ANSI C95.1-1982), issued by the American National
Standards Institute. Renewal of the FCC Licenses would not constitute a "major
action" within the meaning of Section 1.1301, et seq., of the FCC's rules.
3.14. Insurance.
Schedule 3.14 contains a list of all policies of title,
property, fire, casualty, liability, life, workmen's compensation, libel and
slander, and other forms of insurance of any kind relating to the Assets (other
than the Excluded Assets) or the business and operations of the Station and
owned or held by Sellers as of the date hereof. All such policies are in full
force and effect.
3.15. Disclosure.
The representations and warranties of Sellers in this
Agreement and the other information furnished by Sellers to Buyer in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, do not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated in order to make such information not materially misleading. Except for
facts affecting the radio industry generally, there is no fact known to either
Seller which can reasonably be expected to have a Material Adverse Effect.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES BY BUYER
Buyer represents and warrants to Sellers as follows:
4.1. Organization and Standing.
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power and authority to carry on its business as now being conducted. Buyer has
all requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
4.2. Authorization.
18
The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate proceedings on the part of Buyer
and no other corporate proceedings or actions on the part of Buyer, its board of
directors or its shareholders is necessary therefor. This Agreement constitutes
a valid and binding agreement and obligation of Buyer, enforceable in accordance
with its terms.
4.3. Required Consents; No Conflicts.
4.3(a) Except in connection with the filings referred to in
Section 5.1, the execution, delivery and performance by Buyer of this Agreement
will not require the consent, approval, authorization or permit of, or filing
with, or notification to any person, entity or Governmental Authority, except
which would not materially affect Buyer's ability to consummate the transactions
contemplated by this Agreement.
4.3(b) The execution and delivery of this Agreement, the
fulfillment of and the compliance with the terms and provisions hereof, and the
consummation of the transactions described herein, do not and will not (i)
conflict with or violate any law, regulation, order, award, judgment, injunction
or decree applicable to or affecting Buyer, (ii) conflict with or result in any
breach of or constitute any default (or an event which with notice or the lapse
of time or both would become a default) under any contract to which Buyer is a
party or by which Buyer is bound or to which any of the Buyer's assets are
subject or affected, or result in the acceleration of any indebtedness of Buyer,
or (iii) conflict with or violate any provision of Buyer's certificate of
incorporation or by-laws, except, in each case, as would not materially affect
Buyer's ability to consummate the transactions contemplated by this Agreement.
4.4. Absence of Litigation.
There is no action, suit, investigation, claim, arbitration or
litigation pending or, to the best of Buyer's knowledge, threatened against,
affecting or involving the transactions contemplated by this Agreement or that
would affect Buyers' ability to perform its obligations under this Agreement, at
law or in equity, or before or by any court, arbitrator or Governmental
Authority, and the Buyer is not operating under or subject to an order, award,
judgment, writ, decree, determination or injunction of any court, arbitrator or
Governmental Authority that would affect the transactions contemplated by this
Agreement or its ability to perform its obligations under this Agreement.
4.5. Qualification of Buyer.
Buyer knows of no facts or circumstances that would cause
Buyer not to meet any qualification to be the assignee of the FCC Licenses or
that Buyer believes will delay a routine grant of the Assignment Applications.
4.6. Disclosure.
19
The representations and warranties of Buyer in this Agreement
and the other information furnished by Buyer to Sellers in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated in order to
make such information not misleading.
ARTICLE 5.
PRE-CLOSING FILINGS AND UNDERTAKINGS
5.1. Applications for FCC Consent.
As promptly as practicable and no later than five (5) business
days following the execution of this Agreement, Sellers and Buyer shall jointly
file one or more applications with the FCC requesting its consent to the
assignment of the FCC Licenses for the Station from Sellers to Buyer (the
"Assignment Applications"). The Sellers and Buyer will diligently take, or fully
cooperate in the taking of, all necessary and proper steps, and provide any
additional information reasonably requested, and use their respective reasonable
commercial efforts to resolve objections that may be asserted by the FCC or any
third party, in order to obtain promptly the requested consent and approval of
the Assignment Applications by the FCC. Notwithstanding anything in this
Agreement to the contrary, this Section 5.1 shall survive the Closing until the
FCC Consent becomes a Final Order. No assignment of the FCC Licenses shall occur
without the prior written consent of the FCC.
5.2. Sharing Information.
Each party hereto shall as promptly as possible, and in any
event within two (2) business days, inform the other of any material
communications between such party and the FCC or any other Governmental
Authority regarding this Agreement or the transactions contemplated hereby. If
any party receives a request for additional information or documentary material
from any such Governmental Authority, then such party shall endeavor in good
faith to make, or cause to be made, as promptly as practicable and after
consultation with the other party, an appropriate response to such request.
5.3. Environmental Reports.
5.3(a) By January 30, 1998, Buyer may obtain, at its sole
expense, phase one environmental assessments of all Real Property (collectively,
the "Phase I Reports"). If, upon receipt of the Phase I Reports, the Buyer has
reasonable grounds to believe that there is contamination with Hazardous
Materials it shall have the right to obtain, within thirty (30)
20
days following receipt of the Phase I Reports, a phase II environmental
assessment report (the "Phase II Report"), at its sole expense, with respect to
any or all of the Real Property.
5.3(b) The Phase I Reports and the Phase II Reports will be
prepared by a nationally recognized firm of environmental engineers as may
reasonably be selected by the Buyer. The Sellers agree to cooperate with the
Buyer and with all third parties in permitting the Buyer to obtain in a timely
manner the Phase I Reports and the Phase II Reports.
5.3(c) If the Phase I Reports or the Phase II Reports show any
condition reportable under applicable Environmental Laws, Buyer shall notify
Sellers of such condition within twenty-four (24) hours following receipt of
such information, which notice shall include a copy of the Phase I Reports or
the Phase II Reports with which Buyer is satisfied. If the cost to cure or
remediate any condition or problem with which Buyer is reasonably dissatisfied
is less than Fifty Thousand Dollars ($50,000), individually, and less than Two
Hundred Thousand Dollars ($200,000), in the aggregate, Sellers shall be
obligated to so cure or remediate such problem on or before the Closing Date. If
the cost to cure or remediate such problem or condition is equal to or in excess
of Fifty Thousand Dollars ($50,000), individually, or Two Hundred Thousand
Dollars ($200,000), in the aggregate, or cannot reasonably be determined, or
such condition cannot reasonably be cured or remediated by Sellers prior to the
Closing Date, Sellers shall have no obligation to undertake corrective action
and if Sellers shall elect not to take such action, Buyer shall have the right
to either waive its rights with respect thereto and proceed with the Closing or
to terminate this Agreement pursuant to the terms of Section 13 hereof.
ARTICLE 6.
COVENANTS AND AGREEMENTS OF SELLERS
Subject to Section 8.1 below, Sellers covenant and agree with
Buyer as follows:
6.1. Negative Covenants.
Pending and prior to the Closing, Sellers will not, without
the prior written consent or approval of Buyer, which shall not be unreasonably
withheld, do or agree to do any of the following, as such actions relate to the
Station or the Assets:
6.1(a) Dispositions; Mergers. Sell, assign, lease or otherwise
transfer or dispose of any of the Assets; or merge or consolidate with or into
any other entity or enter into any Contracts relating thereto; provided,
however, that Sellers may sell, assign, lease or otherwise transfer or dispose
of any Asset in the Ordinary Course of Business provided that either (i) it is
replaced or (ii) the sale proceeds in respect of such Asset are held for the
benefit of the Buyer.
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6.1(b) Additional Agreements. Acquire or enter into any
Additional Agreements except in the Ordinary Course of Business, or renew,
extend, amend, alter, modify, replace or otherwise change any Scheduled
Contract, except in the Ordinary Course of Business.
6.1(c) Contract Breaches. Do or omit to do any act (or permit
such action or omission) which will cause a material breach of any Contract to
which either Seller is a party or by which either Seller is bound.
6.1(d) Actions Affecting FCC Licenses or Contracts. Take any
action that jeopardizes the validity or enforceability of or rights under the
FCC Licenses, or take any action under any Scheduled Contract that would have a
Material Adverse Effect.
6.2. Affirmative Covenants.
Pending and prior to the Closing Date, Sellers will, as such
actions relate to the Station or the Assets:
6.2(a) Normal Operations. Subject to the terms and conditions
of this Agreement (including, without limitation, Section 6.1) (i) carry on the
business and activities of the Station in the Ordinary Course of Business; (ii)
pay or otherwise satisfy all obligations (cash and barter) of the Station in the
Ordinary Course of Business; (iii) maintain all Assets in customary repair,
order and condition; and (iv) maintain their books of account, records, and
files in substantially the same manner as heretofore maintained.
6.2(b) FCC Matters. (i) Maintain the validity of the FCC
Licenses, and comply in all material respects with all requirements of the FCC
Licenses and the rules and regulations of the FCC; and (ii) deliver to Buyer,
within ten (10) business days after filing, copies of any reports, applications
or responses to the FCC related to the Station that are filed between the date
of this Agreement and the Closing Date.
6.2(c) Actions. Take all actions under the applicable laws and
regulations of any state having jurisdiction over Sellers necessary to
effectuate the transactions contemplated by this Agreement and by the other
Transaction Documents.
6.2(d) Transfer Tax: Bulk Sales. If any laws pertaining to
bulk sales apply to the transactions contemplated hereby, Sellers will indemnify
the Buyer against any and all debts, claims, unpaid bills, attachments,
injunctions or other writs and against any and all loss on account of charges,
assessments, damages or expenses incurred by the Buyer, except to the extent
assumed by the Buyer hereunder, on account of failure to comply with such laws
22
pertaining to bulk sales. Payment of any claims under the immediately preceding
sentence shall be made promptly in cash upon demand.
6.2(e) Access. Sellers shall (i) give to Buyer and Buyer's
authorized representatives access during normal business hours to Sellers'
properties, books, records, Contracts, commitments, Transmitter Site facilities,
premises, and equipment and to Sellers' officers and employees, agents and
representatives (including, without limitation, the independent accountants of
Sellers) relating to the Assets and (ii) permit Buyer and Buyer's consulting
engineers and independent contractors, at Buyer's expense, to conduct
engineering and other inspections of the Station and the Assets, provided that
all access under subparagraphs (i) and (ii) shall be upon reasonable prior
notice and in a manner that will not interfere with the Station's operations.
6.2(f) Encumbrances. Pay in full all liabilities associated
with and use its reasonable commercial efforts to obtain discharges of all
mortgages, security interests, liens and similar claims by third parties
encumbering the Assets (other than Permitted Encumbrances) at or prior to the
Closing Date.
6.2(g) Insurance. Maintain in full force and effect all of
their existing casualty, liability, and other insurance through the day
following the Closing Date in amounts not less than those in effect on the date
hereof.
6.2(h) Violations. Upon receiving notice or otherwise becoming
aware of any violation relating to the FCC Licenses, any violation by the
Station of any rules and regulations of the FCC, or any material violations
under any other applicable laws and regulations, promptly notify Buyer and, at
Sellers' expense, use reasonable commercial efforts to cure all such violations
prior to the Closing Date.
6.2(i) Interruption in Broadcast Operations. Promptly notify
Buyer in writing if the Station ceases to broadcast at its authorized power for
more than 48 consecutive hours. Such notice shall specify the reason or reasons
for such cessation and the corrective measures taken or to be taken by Sellers.
6.2(j) Environmental Matters. (i) Promptly furnish to Buyer
written notice of any material discharge of any Hazardous Materials or of any
actions or notices described in Section 3.13; and (ii) any material change in
the information set forth in Section 3.13 or Schedule 3.13(b).
6.2(k) Consents. Use commercially reasonable efforts to obtain
any third party consents required to assign to Buyer all Material Contracts and
to obtain third party consents to all other Contracts. If, on the Closing Date,
Sellers have not obtained any required consent for the assignment of any
Material Contract to Buyer and the Closing occurs, then after the Closing Date,
Sellers will continue to use commercially reasonable efforts, and the Buyer will
cooperate
23
with Sellers, to obtain any such consent and/or to remove any other impediments
to the assignment of any such Material Contract. From and after the Closing,
until the valid assignment of all such Material Contracts, Sellers will take
such lawful actions as are reasonably necessary to assure that Buyer shall
receive the benefits of, and shall be obligated to perform the obligations of
Sellers under, all such Material Contracts after the Closing Date to the same
extent as if Buyer were a party thereunder (and Buyer agrees to cooperate with
Sellers in connection with any such actions and to enter into, at the time of
the Closing, any lawful arrangements in furtherance thereof (but at no
additional cost to Buyer other than such costs as Buyer would incur as a party
to such Material Contracts)).
6.2(l) Updating. Prior to the Closing Date, provide Buyer with
documentation regarding any material changes to the Schedules hereto including,
without limitation, copies of Additional Agreements.
6.2(m) Consent of Lenders. Use best efforts to obtain the
consents of their lenders under any and all existing credit facilities which are
required to consummate the transactions contemplated by this Agreement. If such
consents are not obtained by January 30, 1998, Sellers shall have the right to
terminate this Agreement pursuant to the terms of Section 13 hereof; provided,
that Sellers must provide Buyer with a notice of termination not later than 5:30
p.m. (EST) on January 30, 1998.
6.3. Confidentiality.
Sellers shall maintain strict confidentiality with respect to
all documents and information furnished to Sellers by or on behalf of Buyer or
retained by Sellers pursuant to Section 2.1(f). Nothing shall be deemed to be
confidential information that: (a) is known to Sellers at the time of its
disclosure to Sellers; (b) becomes publicly known or available other than
through disclosure by Sellers; (c) is received by Sellers from a third party not
actually known by Sellers to be bound by a confidentiality agreement with or
obligation to Buyer; or (d) is independently developed by Sellers as clearly
evidenced by its records. Notwithstanding the foregoing provisions of this
Section 6.3, Sellers may disclose such confidential information (x) to the
extent required or deemed advisable to comply with applicable laws and
regulations, (y) to its officers, managers, members, employees, representatives,
financial advisors, attorneys, accountants, lenders and agents and to its
members' officers and directors with respect to the transactions contemplated
hereby (so long as such parties are informed of the confidentiality of such
information), and (z) to any Governmental Authority in connection with the
transactions contemplated hereby. In the event this Agreement is terminated,
Sellers will return to Buyer all confidential information prepared or furnished
by Buyer relating to the transactions contemplated hereunder, whether obtained
before or after the execution of this Agreement.
ARTICLE 7.
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COVENANTS AND AGREEMENTS OF BUYER
Buyer covenants and agrees with Sellers as follows:
7.1. Confidentiality.
Buyer shall maintain strict confidentiality with respect to
all documents and information furnished to Buyer by or on behalf of Sellers.
Nothing shall be deemed to be confidential information that: (a) is known to
Buyer at the time of its disclosure to Buyer; (b) becomes publicly known or
available other than through disclosure by Buyer; (c) is received by Buyer from
a third party not actually known by Buyer to be bound by a confidentiality
agreement with or obligation to Sellers; or (d) is independently developed by
Buyer as clearly evidenced by its records. Notwithstanding the foregoing
provisions of this Section 7.1, Buyer may disclose such confidential information
(x) to the extent required or deemed advisable to comply with applicable laws
and regulations, (y) to its officers, directors, employees, representatives,
financial advisors, attorneys, accountants, and agents with respect to the
transactions contemplated hereby (so long as such parties are informed of the
confidentiality of such information), and (z) to any Governmental Authority in
connection with the transactions contemplated hereby. In the event this
Agreement is terminated, Buyer will return to Sellers all confidential
information prepared or furnished by Sellers relating to the transactions
contemplated hereunder, whether obtained before or after the execution of this
Agreement.
7.2. Actions.
Prior to the Closing, Buyer shall take all action under the
applicable laws and regulations of any state having jurisdiction over Buyer
necessary to effectuate the transactions contemplated by this Agreement.
7.3. Access.
Buyer agrees to (i) maintain all of the books and records of
the Station existing on the Closing Date for a period of ten (10) years from the
Closing Date, unless earlier released by Sellers and (ii) give Sellers and
Sellers' authorized representatives full and complete access upon reasonable
notice during normal business hours to such books and records of the Station
existing on the Closing Date.
7.4. Notice of Certain Events.
Buyer agrees to promptly notify Sellers of any fact or
circumstance of which Buyer becomes aware after the date of this Agreement that
would reasonably be expected to cause it not to meet any qualification to be the
assignee of the FCC Licenses or that it believes may delay a routine grant of
the Assignment Applications. Buyer will use its reasonable
25
commercial efforts to remedy such fact or circumstance. Buyer will not take any
action that Buyer knows, or has reason to believe, would result in the
occurrence of any such fact or circumstance.
7.5. Buyout Payment.
Upon the earlier of (i) Closing, (ii) the termination of this
Agreement and (iii) June 1, 1998, Buyer agrees to pay Sellers an amount equal to
Fifty Thousand Dollars ($50,000) (the "Buyout Payment") by wire transfer of
immediately available funds to such bank or other financial institution as shall
be designated by Sellers in consideration of Sellers' lost revenue in respect of
Sellers' existing national and local advertising contracts which would have run
on the Station after the date hereof.
ARTICLE 8.
MUTUAL COVENANTS AND UNDERSTANDINGS
OF SELLERS AND BUYER
8.1. Possession and Control.
Notwithstanding any other provision of this Agreement or any
Transaction Document, between the date hereof and the Closing Date, Buyer shall
not directly or indirectly control, supervise or direct, or attempt to control,
supervise or direct, the business and operations of the Station, and such
operation, including complete control and supervision of all programming,
finances and employment shall be the sole responsibility of Sellers; provided,
however, that Buyer shall be entitled (i) to provide programming to the Station
pursuant to the TBA, and (ii) to inspect the Assets as provided in Section
6.2(e). On and after the Closing Date, Sellers shall have no control over, or
right to intervene, supervise, direct or participate in, the business and
operations of the Station.
8.2. Risk of Loss.
8.2(a) The risk of loss or damage by fire or other casualty or
cause to the Assets until the Closing Date shall be upon Sellers. In the event
of such loss or damage prior to the Closing Date, Sellers shall use reasonable
commercial efforts to restore, replace or repair the damaged Assets in
accordance with Sellers' past practices at Sellers' sole cost and expense. In
the event such loss or damage shall not be restored, replaced, or repaired as of
the Closing Date, Buyer shall proceed with the Closing and receive at Closing a
reduction of the Purchase Price in an amount which, net of any insurance
proceeds paid by Sellers to Buyer, or the value of any rights to receive
insurance proceeds which are assigned by Sellers to Buyer, is sufficient to pay
for such restoration, replacement or repair.
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8.2(b) In the event that any loss or damage described in
Section 8.2(a) shall not be restored, replaced or repaired as of the Closing
Date, Sellers may defer the Closing Date until such restorations, replacements
or repairs are made, so long as such restorations, replacements or repairs are
made within sixty (60) days after the date the Closing would have occurred in
the absence of such loss or damage.
8.2(c) Notwithstanding anything contained herein to the
contrary, to the extent that any loss or damage by fire or other casualty or
cause to the Assets occurs as a result of or arises out of Buyer's operation of
the Station pursuant to the TBA, Sellers shall have no liability hereunder for
such loss, and Buyers shall proceed with the Closing with no reduction to the
Purchase Price.
8.3. Allocation of Purchase Price.
Buyer and Sellers will allocate the Purchase Price payable by
Buyer hereunder in accordance with the requirements of Section 1060 of the Code.
A preliminary allocation shall be prepared by Buyer and the final allocation
shall be determined by mutual agreement of the parties prior to the Closing.
Buyer and Sellers further agree to file their respective federal income tax
returns and other tax returns in a manner consistent with such final allocation.
8.4. Public Announcements.
Sellers and Buyer shall consult with each other before making
any public statements with respect to this Agreement or the transactions
contemplated herein and shall not issue any such press release or make any such
public statement without the prior written consent of the other party, which
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that a party may, without the prior consultation with or written consent of the
other party, issue such press release or make such public statement as may be
required by Law or any listing agreement with a national securities exchange to
which Sellers or Buyer (or any affiliate of Sellers or Buyer) is a party if it
has used all reasonable efforts to consult with the other party and to obtain
such party's consent but has been unable to do so in a timely manner.
8.5. Employee Matters.
All employees of the Station shall be and remain Sellers'
employees, with Sellers having full authority and control over their actions,
and Buyer shall not assume the status of an employer or a joint employer of, or
incur or be subject to any liability or obligations of an employer with respect
to, any such employees unless and until actually hired by Buyer. Sellers shall
be solely responsible for any and all liabilities and obligations Sellers may
have to the employees of the Station, including, without limitation,
compensation, severance pay, incentive bonuses, health expenses, and accrued
vacation time, sick leave and obligations under any of Sellers' employee benefit
plans. Sellers shall comply with the
27
provisions of the Worker Adjustment and Retraining and Notification Act (the
"WARN Act") and similar laws and regulations, if applicable, and shall be solely
responsible for any and all liabilities, penalties, fines, or other sanctions
that may be assessed or otherwise due under such applicable laws and regulations
on account of the dismissal or termination of the employees of the Station by
Sellers.
8.6. Unwind Agreement.
Pursuant to Sections 9.4 of this Agreement, the parties agree
to close the transactions contemplated by this Agreement prior to the FCC
Consent becoming a Final Order and to enter into an unwind agreement, at
Closing, in substantially the form attached as Exhibit B hereto (the "Unwind
Agreement").
8.7 Time Brokerage Agreement.
Upon execution of this Agreement, One-On-One Radio and Buyer
shall enter into the TBA.
ARTICLE 9.
CONDITIONS PRECEDENT TO
BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer to purchase the Assets and to proceed
with the Closing are subject to the satisfaction (or waiver in writing by Buyer)
at or prior to the Closing of each of the following conditions:
9.1. Representations and Covenants.
Each of the representations and warranties (other than those
representations and warranties which by their terms are as of a specific date)
of Sellers made in this Agreement or in any other Transaction Document shall be
true and correct, as though made on or as of the Closing Date, and Sellers shall
have performed and complied with all covenants and agreements required by this
Agreement or any other Transaction Document to be performed or complied with by
Sellers prior to the Closing.
9.2. Consents.
Sellers shall have either (a) obtained prior to the Closing
Date all consents, authorizations or approvals necessary to effect valid
assignments to Buyer of the Material Contracts (including any Additional
Agreement that either (i) replaces any Material Contract or (ii) the subject
matter and value of which is substantially similar to any of the Material
28
Contracts, but excluding those Material Contracts that have expired in the
Ordinary Course of Business prior to the Closing Date), except for the FCC
Consent, which shall be governed by Section 9.4 or (b) entered into an
arrangement pursuant to Section 6.2(k) hereof with respect such Material
Contracts.
9.3. Delivery of Documents.
Sellers shall have delivered to Buyer the Transaction
Documents required to be delivered by Sellers to Buyer pursuant to Section 11.2.
9.4. FCC Consent.
The FCC Consent shall have been granted and shall be in full
force and effect (but without having waited for the FCC Consent to become a
Final Order).
9.5. Legal Proceedings.
No Governmental Authority shall have enacted, enforced, issued
or entered any law, rule, regulation or order, including in connection with any
action or proceeding brought by a third party (not subsequently dismissed,
settled or otherwise terminated), which prohibits or invalidates the
transactions contemplated by this Agreement or any other Transaction Document or
prevents, limits, restricts or impairs the ownership, use or operation of the
Assets or the Station by Buyer, other than an action or proceeding instituted by
Buyer.
9.6. Estoppel Certificates.
Sellers shall have obtained and delivered prior to Closing an
estoppel certificate, dated within 10 days prior to the Closing, from each of
the landlords of the Leases set forth in Schedule 2.1(b), in form and substance
reasonably satisfactory to Buyer.
9.7. Time Brokerage Agreement.
The TBA and all agreements contemplated therein shall have
become effective in accordance with the terms and conditions thereof and, from
and after the date the TBA and such agreements are to first become effective
through and including the Closing Date, the TBA and such agreements shall have
not been terminated due to One-On-One Radio's breach thereof.
ARTICLE 10.
CONDITIONS PRECEDENT TO
SELLERS' OBLIGATION TO CLOSE
29
The obligations of Sellers to sell, transfer, convey and
deliver the Assets (other than the Excluded Assets) and to proceed with the
Closing are subject to the satisfaction (or waiver in writing by Sellers) at or
prior to the Closing of each of the following conditions:
10.1. Representations and Covenants.
Each of the representations and warranties of Buyer made in
this Agreement shall be true and correct, as though made on or as of the Closing
Date, and Buyer shall have performed and complied with all covenants and
agreements required by this Agreement or any other Transaction Document to be
performed or complied with by Buyer prior to the Closing.
10.2. Delivery by Buyer.
Buyer shall have delivered to Sellers (i) the Purchase Price
and (ii) any other document required to be delivered by Buyer to Sellers
pursuant to Section 11.3.
10.3. FCC Consent.
The FCC Consent shall have been obtained.
10.4. Legal Proceedings.
No Governmental Authority shall have enacted, enforced,
issued or entered any law, rule, regulation or order, including in connection
with any action or proceeding brought by a third party, (not subsequently
dismissed, settled, or otherwise terminated) which prohibits or invalidates the
transactions contemplated by this Agreement, any other Buyer Document or any
Transaction Document, other than an action or proceeding instituted by Sellers.
10.5. Time Brokerage Agreement.
The TBA and all agreements contemplated therein shall have
become effective in accordance with the terms and conditions thereof and, from
and after the date the TBA and such agreements are to first become effective
through and including the Closing Date, the TBA and such agreements shall have
not terminated due to Buyer's breach thereof.
ARTICLE 11.
THE CLOSING
11.1. Closing.
30
11.1(a) Unless otherwise agreed upon in writing by Buyer and
Sellers, the Closing Date shall be on the fifteenth (15th) business day
following the grant of the FCC Consent.
11.1(b) The Closing shall be held at such time of day and
place or places as the parties may agree.
11.2. Delivery by Sellers.
At or before the Closing, Sellers shall deliver to Buyer the
following:
11.2(a) Contracts, Agreements and Instruments. The following
Transaction Documents dated as of the Closing Date and duly executed by Sellers,
in form and substance reasonably satisfactory to counsel to Buyer and sufficient
to transfer and convey to Buyer all of Sellers' right, title and interest (of
the quality required in this Agreement) in and to the Assets other than the
Excluded Assets:
(i) the Assignment of Leases;
(ii) the Bill of Sale;
(iii) the Assignment of FCC Licenses;
(iv) the Assignment of Contracts; and
(v) all such other general instruments of
transfer, assignment and
conveyance, grant deeds, certificates of title, assignments, estoppel
certificates for Leased Real Property, evidences of consent or waiver, and other
instruments or documents in form and substance satisfactory to Buyer, as shall
be necessary to evidence the sale, assignment, transfer and conveyance of the
Assets other than the Excluded Assets to Buyer in accordance with this
Agreement.
11.2(b) Consents. Originals of all consents obtained
pursuant to Section 6.2(k).
11.2(c) UCC Report. A report dated not more than ten (10)
days prior to the Closing Date of the appropriate filing officers in the
jurisdictions specified in Schedule 3.1 evidencing no judgments, financing
statements, tax liens, mechanics', materialmen's or other statutory liens on
file with respect to the Assets, and, if such report evidences that judgments,
financing statements, tax liens, mechanics', materialmen's or other statutory
liens are on file with respect to any of the Assets, a termination statement or
other appropriate document signed by the secured party or lienholder
31
evidencing the release or termination of such financing statement or such lien
or a pay-off letter from such secured party or lienholder indicating that such
party or lienholder will provide such release or termination statement upon
receipt of payment from the proceeds of the sale contemplated herein.
11.2(d) Certified Consents. A copy of (i) a written consent
signed by each Seller's members and certified as being correct and complete and
then in full force and effect, authorizing the execution, delivery and
performance of the Transaction Documents, and the consummation of the
transactions contemplated thereby, and (ii) a copy of the certificate of
formation and the limited liability company agreement of each Seller, certified
by the members of each Seller as being true, correct and complete as of the
Closing Date.
11.2(e) Members' Certificates.
(i) Certificates from each Seller signed on
behalf of such Seller by each of their members certifying that all conditions
set forth in Section 9.1 (giving effect to any updated Schedules pursuant to
Section 6.2(l)) have been satisfied; and
(ii) Certificates signed by the members of each
Seller as to the authorization of the officers of such members executing any
Transaction Document on behalf of such Seller.
11.2(f) Sellers' IRS Form 8594. Internal Revenue Service
Form 8594 completed by Sellers in connection with the acquisition of the Assets
by Buyer.
11.2(g) Expense Payment. A check or checks, or other
evidence of payment acceptable to Buyer, with respect to the expenses payable by
Sellers, if any, as described in Section 15.4.
11.2(h) Opinions of Counsel. The opinions of Winston &
Strawn and Fletcher, Heald & Hildreth, P.L.C., counsel to Sellers, in form and
substance reasonably satisfactory to Buyer.
11.2(i) Unwind Agreement. The Unwind Agreement (unless at
the time of the Closing the FCC Consent shall have become a Final Order).
11.2(j) Other Documents. Such other documents to be
delivered by Sellers hereunder as are reasonably necessary for Buyer to
effectuate and document the transactions contemplated hereby.
11.3. Delivery by Buyer.
At or before the Closing, Buyer shall deliver to Sellers the
following:
11.3(a) Purchase Price Payment. The Purchase Price.
32
11.3(b) Buyer Documents. Such certificates, instruments or
documents as Sellers may reasonably request in order to effect and document the
transactions contemplated hereby.
11.3(c) Certified Resolutions and Corporate Documents. A
copy of (i) the resolutions of the board of directors of Buyer, certified as
being correct and complete and then in full force and effect, authorizing the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and (ii) a copy of the certificate of
incorporation and by-laws of Buyer, certified by the corporate secretary of
Buyer as being true, correct and complete as of the Closing Date.
11.3(d) Officers' Certificate.
(i) A certificate of Buyer signed by its
president and corporate secretary certifying that all conditions set forth in
Section 10.1 have been satisfied; and
(ii) a certificate signed by the corporate
secretary of Buyer as to the incumbency of the officer of Buyer executing this
Agreement on behalf of the Buyer.
11.3(e) Buyer's IRS Form 8594. Internal Revenue Service Form
8594 completed by Buyer in connection with the acquisition of the Assets by
Buyer.
11.3(f) Expense Payment. A check or checks, or other
evidence of payment acceptable to Sellers, with respect to the expenses payable
by Buyer, if any, as described in Section 15.4.
11.3(g) Opinion of Counsel. The opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel to Buyer, in form and substance reasonably
satisfactory to Sellers.
11.3(h) Unwind Agreement. The Unwind Agreement (unless at
the time of the Closing the FCC Consent shall have become a Final Order).
11.3(i) Buyout Payment. The Buyout Payment.
11.3(j) Other Documents. Such other documents to be
delivered by Buyer hereunder as are reasonably necessary for Sellers to
effectuate the transactions contemplated herein.
ARTICLE 12.
SURVIVAL; INDEMNIFICATION
33
12.1. Survival of Representations.
Except as otherwise set forth herein, all representations
and warranties, covenants and agreements of Sellers and Buyer contained in or
made pursuant to this Agreement or in any certificate furnished pursuant hereto
shall survive the Closing Date and shall remain in full force and effect for a
period of twelve (12) months after the Closing Date, except that the
representations and warranties of Sellers contained in Section 3.13 shall
survive the Closing Date and shall remain in full force and effect for a period
of eighteen (18) months after the Closing Date. Except as set forth in Section
5.3(c), all such representations and warranties, covenants, and agreements shall
also survive and be unaffected by (and shall not be deemed waived by) any
investigation, audit, appraisal, or inspection at any time made by or on behalf
of any party hereto. Notwithstanding anything herein to the contrary, any
representation, warranty, covenant or agreement which is the subject of a claim
which is asserted in writing prior to the expiration of the applicable period
set forth above shall survive with respect to such claim or dispute until the
final resolution thereof.
12.2. Indemnification by Sellers.
Except as set forth in Section 5.3(c) and subject to the
conditions and provisions of Section 12.4, Sellers agrees to indemnify, defend
and hold harmless Buyer and Buyer's respective directors, officers, managers and
employees ("Buyer Indemnified Parties") from and against and in respect of any
and all Losses, asserted against, resulting to, imposed upon or incurred by the
Buyer Indemnified Parties, directly or indirectly, by reason of or resulting
from (a) any liability or obligation of or claim against Buyer Indemnified
Parties (whether absolute, accrued, contingent or otherwise and whether a
contractual or any other type of liability or obligation or claim) not expressly
assumed by Buyer pursuant to Section 2.6, arising out of, relating to or
resulting from the businesses of Sellers, or relating to or resulting from the
Assets or the business and operations of the Station during the period prior to
the Closing Date; (b) any misrepresentation or breach of the warranties of
Sellers contained in or made pursuant to any Transaction Document; (c) any
noncompliance by Sellers with any covenants, agreements or undertakings of
Sellers contained in or made pursuant to any Transaction Document including
without limitation any failure to comply with applicable Bulk Sales laws; (d)
any employment related practices, policies, Contracts, decisions, actions or
omissions by Sellers with respect to any of Sellers' employees or former
employees or otherwise with respect to any employee benefit plan or arrangement
sponsored or maintained by Sellers or any Affiliate of Sellers or; (e) any
breach by Sellers of any Scheduled Contract; (f) any pre-closing breach by
Sellers of either (x) any Contract assumed by Buyer pursuant to Section 2.6(b)
(iii) or (y) any Additional Agreement that constitutes an Assumed Liability.
12.3. Indemnification by Buyer.
34
Subject to the conditions and provisions of Section 12.4,
Buyer hereby agrees to indemnify, defend and hold harmless Sellers, their
members and their respective directors, officers and employees ("Sellers
Indemnified Parties") from, against and with respect to any and all Losses,
asserted against, resulting to, imposed upon or incurred by Sellers Indemnified
Parties, directly or in indirectly, by reason of or resulting from (a) any
liability or obligation of or claims against Sellers Indemnified Parties
(whether absolute, accrued, contingent or otherwise and whether contractual, Tax
or any other type of liability or obligation or claim) expressly assumed by
Buyer pursuant to Section 2.6; (b) any misrepresentation or breach of the
warranties of Buyer contained in or made pursuant to any Buyer Document; (c) any
noncompliance by Buyer with any covenants, agreements or undertakings of Buyer
contained in or made pursuant to any Buyer Document; (d) any liability or
obligation of or claims against Sellers Indemnified Parties (whether absolute,
accrued, contingent or otherwise and whether a contractual, Tax or any other
type of liability or obligation or claim) arising out of, relating to or
resulting from the business of Buyer, or relating to or resulting from the
Assets (other than the Excluded Assets) or the Assumed Liabilities, or the
business and operations of the Station during the period from and after the
Closing Date; (e) any failure by Buyer to obtain and hold any permit, license or
approval from any Governmental Authority necessary in order to conduct the
operations of the Station in accordance with applicable law and to own, use and
maintain the Assets; and (f) any decision by Buyer to close the transactions
contemplated by this Agreement notwithstanding a failure by Sellers to obtain
any consent, authorization or approval, including Governmental Approvals
relating to the assignment of governmental permits, orders or authorizations,
and consents, authorizations and approvals of non-governmental third parties
necessary to effect valid assignments or transfers to Buyer of any Asset,
including any Material Contract set forth on Schedule 2.1(e), or any Additional
Agreement.
12.4. Conditions of Indemnification.
The obligations and liabilities of Sellers and of Buyer
hereunder with respect to their respective indemnities pursuant to this Article
12, shall be subject to the following terms and conditions:
12.4(a) The party seeking indemnification (the "Indemnified
Party") must give the other party or parties, as the case may be (the
"Indemnifying Party"), notice specifying in reasonable detail the nature of any
such Losses promptly after the Indemnified Party receives notice thereof;
provided that the failure to give such notice shall not affect the rights of the
Indemnified Party hereunder except to the extent that the Indemnifying Party's
defense shall have been materially impaired.
12.4(b) The Indemnifying Party shall have the right, absent
a conflict of interest, to undertake, by counsel or other representatives of its
own choosing, the defense of such Losses at the Indemnifying Party's risk and
expense.
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12.4(c) In the event that the Indemnifying Party shall elect
not to undertake such defense, or, within a reasonable time after notice from
the Indemnified Party of any such Losses, shall fail to defend, the Indemnified
Party (upon further written notice to the Indemnifying Party) shall have the
right to undertake the defense, compromise or settlement of such Losses, by
counsel or other representatives of its own choosing, on behalf of and for the
account and risk of the Indemnifying Party (subject to the right of the
Indemnifying Party to assume defense under Section 12.4(b) hereof at any time
prior to settlement, compromise or final determination thereof). In such event,
the Indemnifying Party shall pay to the Indemnified Party, in addition to the
other sums required to be paid hereunder, the costs and expenses incurred by the
Indemnified Party in connection with such defense, compromise or settlement as
and when such costs and expenses are so incurred.
12.4(d) Anything in this Section 12.4 to the contrary
notwithstanding, (i) if there is a reasonable probability that Losses may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise or
settlement of the Losses, (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, which shall not be unreasonably withheld,
settle or compromise any Losses or consent to entry of any judgment which does
not include as an unconditional term thereof the giving by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect of
such Losses in form and substance satisfactory to the Indemnified Party, and
(iii) in the event that the Indemnifying Party undertakes defense of any Losses,
the Indemnified Party, by counsel or other representative of its own choosing
and at its sole cost and expense, shall have the right to consult with the
Indemnifying Party and its counsel or other representatives concerning such
Losses and the Indemnifying Party and the Indemnified Party and their respective
counsel or other representatives shall cooperate with respect to such Losses and
(iv) in the event that the Indemnifying Party undertakes defense of any Losses,
the Indemnifying Party shall have an obligation to keep the Indemnified Party
informed of the status of the defense of such Losses and furnish the Indemnified
Party with all documents, instruments and information that the Indemnified party
shall reasonably request in connection therewith.
12.4(e) No claim for indemnification shall be made by either
Indemnified Party unless the aggregate losses of such Indemnified Party exceed
Fifty Thousand Dollars ($50,000) (the "Threshold Amount"), whereupon, the
Indemnified Party shall be entitled to indemnification hereunder by the
Indemnifying Party for any such aggregate losses in excess of the Threshold
Amount. Notwithstanding any other provision of this Agreement, the maximum
liability that any Indemnifying Party shall have for indemnification claims
hereunder shall not exceed Nine Million Dollars ($9,000,000) in the aggregate.
12.4(f) The indemnification obligations under this Article
12 with respect to Sections 12.2(b) and 12.3(b) shall expire twelve (12) months
following the Closing Date; provided, that, if any such indemnification claim
under such Sections has been asserted in
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writing prior to the stated expiration of the applicable period set forth above,
then any indemnification obligation with respect thereto shall survive until
final resolution thereof.
12.4(g) If any indemnity claim relates to the cleanup of
Hazardous Materials, such cleanup shall be required only to the extent that it
is required by a Governmental Authority pursuant to an Environmental Law.
ARTICLE 13.
TERMINATION
13.1. Termination.
This Agreement may be terminated at any time prior to the
Closing by:
13.1(a) the mutual consent, in writing, of Sellers and
Buyer;
13.1(b) Buyer, by written notice of termination delivered to
Sellers, if Sellers are in material default of their obligations hereunder and
have failed to cure such default to Buyer's reasonable satisfaction within
thirty (30) days following written notice of such default sent by Buyer to
Sellers;
13.1(c) Buyer, pursuant to, and in accordance with Sections
5.3;
13.1(d) Sellers, pursuant to, and in accordance with Section
6.2(m);
13.1(e) Sellers, by written notice of termination delivered
to Buyer, if Buyer is in material default of its obligations hereunder and has
failed to cure such default to Sellers' reasonable satisfaction within thirty
(30) days following written notice of such default sent by Sellers to Buyer;
13.1(f) automatically, without the need for further action
on the part of any party hereto, upon the first date on which the denial of the
FCC Consent becomes a Final Order; or
13.1(g) by any party not then in default hereunder if for
any reason the Closing has not occurred within one year following the date of
this Agreement (as such date may be extended by mutual agreement of the
parties).
13.2. Effect of Termination.
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In the event this Agreement is terminated as provided in
Section 13.1(a), (c), (d), (f) or(g), this Agreement shall be deemed null, void
and of no further force or effect, and the parties hereto shall be released from
all future obligations hereunder with respect to the Station; provided, however,
that the obligations of Buyer and Sellers as in Sections 6.3, 7.1, 13.2, 15.3
and 15.4, shall survive such termination. If this Agreement is subject to
termination as provided in Sections 13.1(b) or (e), the rights of the parties
shall be governed by Article 14.
ARTICLE 14.
REMEDIES
14.1. Default by Sellers.
If this Agreement is terminable by Buyer pursuant to Section
13.1(b) and Buyer is not in material default or material breach of this
Agreement, Buyer shall be entitled:
(i) to require Sellers to consummate and specifically
perform the sale in accordance with Section 14.3, if necessary through
injunction or other court order or process; or
(ii) by written notice to Sellers, to terminate this
Agreement; and
(iii) to pursue any and all remedies against Sellers
available at law or in equity.
14.2. Default by Buyer.
If this Agreement is terminated pursuant to Section 13.1(e)
and Seller is not in material default or material breach of this Agreement,
Sellers shall be paid the Escrow Deposit, together with any interest earned
thereon, as liquidated damages, it being agreed that such payment shall
constitute full payment for any and all damages suffered by Sellers by reason
thereof and that Sellers shall have no rights to or claims for damages from
Buyer or its Affiliates other than as set forth in this Agreement.
14.3. Specific Performance.
Sellers acknowledges that the Assets to be sold and
delivered to Buyer pursuant to this Agreement are unique and that Buyer has no
adequate remedy at law if Sellers shall fail to perform any of its obligations
hereunder, and Sellers therefore confirms and agrees that Buyer's right to
specific performance is essential to protect the rights and interests of Buyer.
Accordingly, Sellers hereby agree that if this Agreement is terminable by Buyer
38
pursuant to Section 13.1(b) and Buyer is not in material default or material
breach of this Agreement, Buyer shall have the right to have all obligations,
undertakings, agreements and other provisions of this Agreement specifically
performed by Sellers and that Buyer shall have the right to obtain an order or
decree of such specific performance in any of the courts of the United States or
of any state or other political subdivision thereof.
14.4. Remedies Not Exclusive.
The remedies provided in this Article 14 shall be cumulative
and not exclusive.
ARTICLE 15.
GENERAL PROVISIONS
15.1. Further Assurances.
Subject to the terms and conditions herein provided, each of
the parties hereto agrees to use its commercially reasonable efforts to take or
cause to be taken all such further actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement or
in order to fully effectuate the purposes, terms and conditions of this
Agreement (including, without limitation, executing, delivering and filing or
causing to be executed, delivered and filed such further documents and
instruments and obtaining such consents (including Governmental Approvals), as
may be necessary or reasonably requested in connection with the consummation of
the transactions contemplated hereby). In case at any time after the Closing
Date any further action is necessary to carry out the purposes of this
Agreement, including, without limitation, the securing of consents of third
parties, each party hereto shall use its reasonable best efforts to take all
such necessary action.
15.2. Mail.
Sellers hereby authorizes and empowers Buyer from and after
the Closing Date (a) to receive and open mail addressed to the Station and (b)
to deal with the contents thereof in any manner Buyer sees fit, provided such
mail and the contents thereof relate to the Station or the Assets (other than
the Excluded Assets) or to any of the Assumed Liabilities. Sellers agrees to
deliver to Buyer any mail, checks or other documents received by it pertaining
to the Station or the Assets (other than the Excluded Assets) or any of the
Assumed Liabilities. Buyer agrees to deliver to Sellers any mail which it
receives to which it is not entitled by reason of the Agreement or otherwise and
to which Sellers is entitled.
15.3. Brokers.
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Sellers represent to Buyer that Sellers have not engaged, or
incurred any liability (for any brokerage fees, finders' fees, commissions or
otherwise) to, any broker, finder or agent in connection with the transactions
contemplated by this Agreement; Buyer represents to Sellers that Buyer has not
engaged, or incurred any unpaid liability (for any brokerage fees, finders'
fees, commissions or otherwise) to, any broker, finder or agent in connection
with the transactions contemplated by this Agreement; and Sellers agree to
indemnify Buyer, and Buyer agrees to indemnify Sellers, against any claims
asserted against the other parties for any such fees or commissions by any
person purporting to act or to have acted for or on behalf of the indemnifying
party. Notwithstanding any other provision of this Agreement, this Section 15.3
shall survive the Closing without limitation.
15.4. Expenses.
Each party hereto shall pay its own expenses incurred in
connection with this Agreement and in the preparation for and consummation of
the transactions provided for herein. Notwithstanding the foregoing, (a) Buyer
and Sellers shall share equally any expenses in connection with any transfer,
sales, filing or use Taxes or fees applicable to, imposed upon or arising out of
the transactions contemplated hereby including, without limitation, any transfer
Tax or filing fee relating to the assignment of the FCC Licenses or the transfer
of Real Property or personal property and (b) Buyer shall pay all expenses with
respect to Phase I Reports and Phase II Reports.
15.5. Notices.
All notices, demands, requests, or other communications
which may be or are required to be given or made by any party to any other party
pursuant to this Agreement shall be in writing and shall be hand delivered,
mailed by first-class registered or certified mail, return receipt requested,
postage prepaid, delivered by overnight air courier, or transmitted by facsimile
transmission addressed as follows:
(i) If to Buyer:
Radio Unica Corp.
8400 N.W. 52nd Street
Suite 101
Miami, Florida 33176
Attention: Joaquin F. Blaya
Facsimile: (305) 442-4077
with a copy (which shall not constitute notice) to:
40
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue
Washington, D.C. 20005
Attention: John C. Quale
Facsimile: (202) 393-5760
(ii) If to Sellers:
One-On-One Sports, Inc.
1935 Techny Rd.
Suite 18
Northbrook, Illinois 60062
Attention: Christopher J. Brennan
Facsimile: (847) 509-1677
with a copy (which shall not constitute notice) to:
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
Attention: Gregory S. Murray
Facsimile: (312) 558-5700
and
Fletcher, Heald & Hildreth, P.L.C.
11th Floor
1300 North 17th Street
Rosslyn, Virginia 22209
Attention: Richard Hildreth
Facsimile: (703) 812-0486
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall
be given or made in the manner described above shall be deemed sufficiently
given or made for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the facsimile transmission
confirmation or the affidavit of messenger being deemed conclusive but not
exclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
15.6. Waiver.
41
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any other
instrument or document given in connection with or pursuant to this Agreement
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege. No waiver shall be valid against any party hereto unless made in
writing and signed by the party against whom enforcement of such waiver is
sought and then only to the extent expressly specified therein.
15.7. Benefit and Assignment.
15.7(a) Except as hereinafter specifically provided in this
Section 15.7, no party hereto shall assign this Agreement, in whole or in part,
whether by operation of law or otherwise, without the prior written consent of
Sellers (if the assignor is Buyer) or Buyer (if the assignor is Sellers); and
any purported assignment contrary to the terms hereof shall be null, void and of
no force and effect. Buyer shall have the right to assign this Agreement to any
entity or entities controlling, controlled by, or under common control with
Buyer so long as any such assignment will not delay the Closing beyond the date
on which any Closing would otherwise occur in accordance with this Agreement;
provided, however, that no such assignment by Buyer shall release Buyer from its
obligations hereunder. Any assignment in accordance with the terms hereof shall
become effective upon delivery of written notice in accordance with Section
15.5.
15.7(b) This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and assigns
as permitted hereunder. No person or entity other than the parties hereto is or
shall be entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the parties hereto or their respective successors and assigns as permitted
hereunder.
15.8. Entire Agreement; Amendment.
This Agreement, including the Schedules hereto and the other
instruments and documents referred to herein or delivered pursuant hereto
contain the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior oral or written agreements, commitments or
understandings with respect to such matters. No amendment, modification or
discharge of this Agreement shall be valid or binding unless set forth in
writing and duly executed by the parties hereto.
15.9. Severability.
42
If any part of any provision of this Agreement or any other
contract, agreement, document or writing given pursuant to or in connection with
this Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said contract, agreement, document or writing.
15.10. Headings.
The headings of the sections and subsections contained in
this Agreement are inserted for convenience only and do not form a part or
affect the meaning, construction or scope thereof.
15.11. Governing Law.
This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes relating thereto, shall be governed by and
construed under and in accordance with the laws of the State of Delaware,
excluding the choice of law rules thereof.
15.12. Signature in Counterparts.
This Agreement may be executed in separate counterparts,
none of which need contain the signatures of all parties, each of which shall be
deemed to be an original, and all of which taken together constitute one and the
same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Asset Purchase Agreement, or has caused this Asset Purchase Agreement to be
duly executed and delivered in its name on its behalf, all as of the day and
year first above written.
Sellers
ONE-ON-ONE SPORTS LICENSE OF FLORIDA, L.L.C
By: One-On-One Sports Radio of Florida, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
By: One-On-One Sports Radio of Florida, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
By: One-On-One Sports Radio Stations, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
ONE-ON-ONE SPORTS RADIO OF FLORIDA, L.L.C.
By: One-On-One Sports Radio Stations, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
By: One-On-One Sports Radio of Florida, Inc.
By: /s/ Christopher J. Brennan
-------------------------------------
Christopher J. Brennan
President
44
BUYER
RADIO UNICA CORP.
By: /s/ Joaquin F. Blaya
-------------------------------------
Joaquin F. Blaya
Chairman and Chief Executive Officer
45
ONE-ON-ONE SPORTS, INC.
JOINDER AGREEMENT
As a material inducement for Buyer to enter into the foregoing
Asset Purchase Agreement of even date herewith and for other valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
One-On-One Sports, Inc., a Delaware corporation ("Parent") and the ultimate
parent of each Seller, hereby joins in and agrees to be bound by the provisions
of the Asset Purchase Agreement as they relate to Sellers. In addition, Parent
acknowledges and agrees that (i) any claim of Buyer arising under the Asset
Purchase Agreement or under any other Transaction Document may be asserted
against Parent and (ii) Parent shall be jointly and severally liable under the
Asset Purchase Agreement and the other Transaction Documents for any default in
the performance of the obligations of Sellers under such documents or for the
breach by either Seller of any representation, warranty, covenant or agreement
contained in such documents to the extent of Sellers' liability.
Parent represents and warrants to Buyer as follows: (a) Parent
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware; (b) Parent has all requisite power and authority
to execute and deliver this Joinder Agreement and to consummate the transactions
contemplated hereby; (c) the execution, delivery and performance of this Joinder
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate proceedings on the part
of Parent and no other corporate proceedings or actions on the part of Parent,
its board of directors or its shareholders is necessary therefor; and (d) this
Joinder Agreement constitutes a valid and binding agreement and obligation of
Parent, enforceable in accordance with its terms.
Dated as of this 26th, day of January, 1998.
ONE-ON-ONE SPORTS, INC.
By: /s/ Christopher J. Brennan
------------------------------
Name: Christopher J. Brennan
Title: President
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