SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 20, 2000
SUSQUEHANNA MEDIA CO.
(Exact name of registrant as specified in charter)
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Delaware 333-80523 23-2722964
(State of other jurisdiction (Commission (IRS employer
of incorporation) file number) identification no.)
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140 East Market Street, York, PA 17401
(Address of principal executive offices)
Registrant's telephone number, including area code: (717) 848-5500
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Item 2. Acquisition or Disposition of Assets
On July 20, 2000, pursuant to an Asset Purchase Agreement among
Susquehanna Radio Corp., a majority-owned subsidiary of the registrant, as
Purchaser and Entercom Communications Corp., Entercom Kansas City, LLC and
Entercom Kansas City License, LLC as Sellers, the registrant acquired, in
consideration of the payment of $113,150,000, the assets of Kansas City radio
stations KCMO-AM, KCMO-FM and KCFX-FM. Radio broadcast rights for the Kansas
City Chiefs NFL franchise through the 2002 football season were included in the
purchase. The registrant's existing credit facilities were used to finance the
acquisition.
Item 7. Financial Statements and Exhibits
(a) and (b). Financial Statements and Pro Forma Financial Information
Financial information relating to the acquisition required by this Item
7 of this Form 8-K will be filed as soon as practicable, but in no event later
than sixty (60) after filing of this report.
(c). Exhibits.
The exhibit(s) filed herewith are set forth on the Exhibit Index
hereto.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: August 2, 2000 SUSQUEHANNA MEDIA CO.
(Registrant)
By: /s/ Peter P. Brubaker
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Peter P. Brubaker
Chief Executive Officer and President
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EXHIBIT INDEX
The following exhibit is filed herewith:
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Exhibit No. Description
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2 Asset Purchase Agreement, dated May 11, 2000, among Susquehanna Radio
Corp. and Entercom Communications Corp., Entercom Kansas City, LLC and
Entercom Kansas City License, LLC
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EXECUTION COPY
ASSET PURCHASE AGREEMENT
DATED MAY 11, 2000
AMONG
ENTERCOM COMMUNICATIONS CORP.
ENTERCOM KANSAS CITY, LLC
ENTERCOM KANSAS CITY LICENSE, LLC
as SELLERS,
AND
SUSQUEHANNA RADIO CORP.
as BUYER
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TABLE OF CONTENTS
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SECTION 1. CERTAIN DEFINITIONS.............................................................................2
1.1 Terms Defined in this Section...................................................................2
1.2 Terms Defined Elsewhere in this Agreement.......................................................8
SECTION 2. EXCHANGE AND TRANSFER OF ASSETS; ASSET VALUE...................................................10
2.1 Agreement to Exchange and Transfer.............................................................10
2.2 Excluded Assets................................................................................10
2.3 Purchase Price.................................................................................12
2.4 Initial Purchase Price.........................................................................12
2.5 Payment of Purchase............................................................................14
2.6 Assumption of Liabilities and Obligations......................................................15
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLERS......................................................15
3.1 Organization and Authority of Sellers..........................................................16
3.2 Authorization and Binding Obligation...........................................................16
3.3 Absence of Conflicting Agreements; Consents....................................................16
3.4 Governmental Licenses..........................................................................17
3.5 Real Property..................................................................................17
3.6 Tangible Personal Property.....................................................................19
3.7 Contracts......................................................................................19
3.8 Intangibles....................................................................................19
3.9 Title to Properties............................................................................20
3.10 Financial Statements...........................................................................20
3.11 Taxes..........................................................................................21
3.12 Insurance......................................................................................21
3.13 Reports........................................................................................21
3.14 Personnel and Employee Benefits................................................................21
3.15 Claims and Legal Actions.......................................................................23
3.16 Environmental Compliance.......................................................................23
3.17 Compliance with Laws...........................................................................24
3.18 Conduct of Business in Ordinary Course.........................................................24
3.19 Transactions with Affiliates...................................................................25
3.20 Broker.........................................................................................25
3.21 Insolvency Proceedings.........................................................................25
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BUYER........................................................25
4.1 Organization, Standing and Authority...........................................................25
4.2 Authorization and Binding Obligation...........................................................26
4.3 Absence of Conflicting Agreements and Required Consents........................................26
4.4 Brokers........................................................................................26
4.5 Availability of Funds..........................................................................26
4.6 Qualifications of Buyer........................................................................26
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4.7 WARN Act.......................................................................................27
4.8 Buyer's Defined Contribution Plan..............................................................27
SECTION 5. OPERATION OF THE STATIONS PRIOR TO CLOSING.....................................................27
5.1 Contracts......................................................................................27
5.2 Compensation...................................................................................28
5.3 Encumbrances...................................................................................28
5.4 Dispositions...................................................................................28
5.5 Access to Information..........................................................................28
5.6 Insurance......................................................................................28
5.7 Licenses.......................................................................................28
5.8 Obligations....................................................................................29
5.9 No Inconsistent Action.........................................................................29
5.10 Maintenance of Assets..........................................................................29
5.11 Consents.......................................................................................29
5.12 Books and Records..............................................................................30
5.13 Notification...................................................................................30
5.14 Financial Information..........................................................................30
5.15 Compliance with Laws...........................................................................30
5.16 Programming....................................................................................30
5.17 Preservation of Business.......................................................................31
5.18 Normal Operations..............................................................................31
SECTION 6. SPECIAL COVENANTS AND AGREEMENTS...............................................................31
6.1 FCC Consent....................................................................................31
6.2 Hart-Scott-Rodino..............................................................................31
6.3 Risk of Loss...................................................................................32
6.4 Confidentiality................................................................................32
6.5 Cooperation....................................................................................32
6.6 Control of the Stations........................................................................32
6.7 Accounts Receivable............................................................................32
6.8 Allocation of Purchase Price...................................................................33
6.9 Access to Books and Records....................................................................34
6.10 Employee Matters...............................................................................34
6.11 Lease Agreement and Shared Property Agreement..................................................36
6.12 Public Announcements...........................................................................36
6.13 Disclosure Schedules...........................................................................36
6.14 Bulk Sales Law.................................................................................36
6.15 Environmental Site Assessment..................................................................37
6.16 Reserved.......................................................................................37
6.17 Adverse Developments...........................................................................37
6.18 Title Insurance................................................................................38
6.19 Surveys........................................................................................38
6.20 Reserved.......................................................................................38
6.21 Reserved.......................................................................................38
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6.22 Cooperation on Tax Matters.....................................................................38
6.23 Nonsolicitation................................................................................38
6.24 Collective Bargaining Duty.....................................................................38
6.25 Shared Use of KCFX Studio......................................................................38
SECTION 7. CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER..................................................39
7.1 Conditions to Obligations of Buyer.............................................................39
7.2 Conditions to Obligations of Sellers...........................................................40
SECTION 8. CLOSING AND CLOSING DELIVERIES.................................................................40
8.1 Closing........................................................................................40
8.2 Deliveries by Sellers..........................................................................41
8.3 Deliveries by Buyer............................................................................42
SECTION 9. TERMINATION....................................................................................44
9.1 Termination by Mutual Consent..................................................................44
9.2 Termination by Seller..........................................................................44
9.3 Termination by Buyer...........................................................................44
9.4 Rights on Termination..........................................................................45
9.5 Liquidated Damages Not a Penalty...............................................................45
9.6 Specific Performance...........................................................................45
9.7 Attorneys' Fees................................................................................45
9.8 Survival.......................................................................................46
SECTION 10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION; CERTAIN REMEDIES..................46
10.1 Survival of Representations....................................................................46
10.2 Indemnification by Seller......................................................................46
10.3 Indemnification by Buyer.......................................................................47
10.4 Procedure for Indemnification..................................................................47
10.5 Certain Limitations............................................................................48
SECTION 11. MISCELLANEOUS..................................................................................49
11.1 Fees and Expenses..............................................................................49
11.2 Notices........................................................................................49
11.3 Benefit and Binding Effect.....................................................................50
11.4 Further Assurances.............................................................................51
11.5 GOVERNING LAW..................................................................................51
11.6 Entire Agreement...............................................................................51
11.7 Waiver of Compliance; Consents.................................................................51
11.8 Headings.......................................................................................51
11.9 Counterparts...................................................................................51
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LIST OF SCHEDULES
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2.2 Excluded Real Property, Excluded Real Property Interests,
Excluded Tangible Personal Property
3.1 Good Standing, Joint Ventures
3.3 Consents
3.4 FCC Licenses
3.5 Real Property
3.6 Tangible Personal Property Exceptions to Title and
Encumbrances
3.7 Contracts and Leases
3.8 Infringements on Intangibles
3.11 Taxes
3.12 Insurance
3.14 Personnel and Employee Benefits
3.14(g) Labor
3.15 Litigation
3.16 Environmental Compliance
3.18 Conduct of Business
3.19 Affiliate Transactions
3.20 Brokers
5.3 Encumbrances
6.10 Retention Agreements
6.23 Nonsolicitation
LIST OF EXHIBITS
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Exhibit 1 Lease
Exhibit 2 Shared Property Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered
into on May 11, 2000 by and among Entercom Communications Corp., a Pennsylvania
corporation ("Entercom"), Entercom Kansas City, LLC, a Delaware limited
liability company ("Entercom Kansas City") and Entercom Kansas City License,
LLC, a Delaware limited liability company ("Kansas City License"), (each a
"Seller" and collectively, "Sellers"), and Susquehanna Radio Corp., a
Pennsylvania corporation ("Buyer").
R E C I T A L S:
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WHEREAS, Entercom Kansas City operates radio broadcast
stations KCMO-AM and KCMO-FM, Kansas City, Missouri, and Entercom has entered
into that certain Asset Purchase Agreement by and among Sinclair Communications,
Inc., Sinclair Media III, Inc., Sinclair Radio of Kansas City Licensee, LLC (the
"Sinclair Sellers"), and Entercom, dated as of August 18, 1999 (the
"Entercom/Sinclair Contract") pursuant to which Entercom has the right to
acquire KCFX-FM, Harrisonville, Missouri (KCMO-AM, KCMO-FM and KCFX-FM,
collectively, the "Stations");
WHEREAS, Kansas City License is the licensee of KCMO-AM and
KCMO-FM, pursuant to certain authorizations issued to it by the FCC, and
Entercom has the right to acquire the FCC licenses of KCFX-FM pursuant to the
Entercom/Sinclair Contract; and
WHEREAS, the parties hereto desire to enter into this
Agreement to provide for the sale, assignment and transfer by Sellers to Buyer
of certain of the assets owned, leased or used by Sellers, in connection with
the business and operations of KCMO-AM and KCMO-FM, and the Sinclair Sellers, in
connection with the business and operations of KCFX-FM.
A G R E E M E N T S:
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In consideration of the above recitals and of the mutual
agreements and covenants contained in this Agreement, the parties to this
Agreement, intending to be bound legally, agree as follows:
SECTION 1.
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CERTAIN DEFINITIONS
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1.1 Terms Defined in this Section. The following terms, as used in this
Agreement, have the meanings set forth in this Section:
"Accounts Receivable" means the rights of Sellers with respect
to accounts receivable of KCMO-AM and KCMO-FM, and the rights of the Sinclair
Sellers with respect to the accounts receivable of KCFX-FM, as of the Closing
Date, to payment in cash for the sale of advertising time and other goods and
services by the Stations prior to the Closing Date.
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"Affiliate" means, with respect to any Person, (a) any other
Person that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with such Person, or (b)
an officer or director of such Person or of an Affiliate of such Person within
the meaning of clause (a) of this definition. For purposes of clause (a) of this
definition, (i) a Person shall be deemed to control another Person if such
Person (A) has sufficient power to enable such Person to elect a majority of the
board of directors or other governing body of such Person, or (B) owns a
majority of the beneficial interests in income and capital of such Person; and
(ii) a Person shall be deemed to control any partnership of which such Person is
a general partner.
"Assets" means the assets to be transferred or otherwise
conveyed by Sellers and the Sinclair Sellers to Buyer under this Agreement, as
such assets are specified in Section 2.1.
"Assumed Contracts" means (a) all Contracts set forth on
Schedule 3.7, (b) Contracts entered into prior to the date of this Agreement
with advertisers for the sale of advertising time or production services for
cash at rates consistent with past practices, (c) Contracts entered into by any
Seller or any Sinclair Seller prior to the date of this Agreement which are not
required to be included on Schedule 3.7 hereto, (d) any Contracts entered into
by any of Sellers (in the case of KCMO-AM and KCMO-FM) and any of the Sinclair
Sellers (in the case of KCFX-FM) between the date of this Agreement and the
Closing Date that Buyer agrees in writing to assume, and (e) other contracts
entered into by any of Sellers (in the case of KCMO-AM and KCMO-FM) and any of
the Sinclair Sellers (in the case of KCFX-FM) between the date of this Agreement
and the Closing Date in compliance with Section 5.1.
"Closing" means the consummation of the exchange and
acquisition of the Assets pursuant to this Agreement on the Closing Date in
accordance with the provisions of Section 8.1.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Communications Act" means the Communications Act of 1934, as
amended.
"Consents" means the consents, permits, or approvals of
government authorities and other third parties necessary to transfer the Assets
to Buyer or otherwise to consummate the transactions contemplated by this
Agreement.
"Contaminant" shall mean and include any pollutant,
contaminant, hazardous material (as defined in any of the Environmental Laws),
toxic substances (as defined in any of the Environmental Laws), asbestos or
asbestos containing material, urea formaldehyde, polychlorinated biphenyls,
regulated substances and wastes, radioactive materials, and petroleum or
petroleum by-products, including crude oil or any fraction thereof, except the
term "Contaminant" shall not include small quantities of maintenance, cleaning
and emergency generator fuel supplies customary for the operation of radio
stations and maintained in compliance with all Environmental Laws in the
ordinary course of business.
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"Contracts" means all contracts, consulting agreements,
leases, non-governmental licenses and other agreements (including leases for
personal or real property and employment agreements), written or oral (including
any amendments and other modifications thereto) to which any Seller (in the case
of KCMO-AM and KCMO-FM) and any Sinclair Seller (in the case of KCFX-FM) is a
party or that are binding upon any Seller or Sinclair Seller, as the case may
be, that relate to or affect the Assets or the business or operations of the
Stations, and that either (a) are in effect on the date of this Agreement,
including those listed on Schedule 3.7 hereto, or (b) are entered into by any
Seller or Sinclair Seller, as the case may be, between the date of this
Agreement and the Closing Date in compliance with Section 5.1 hereof.
"Effective Time" means 12:01 a.m., Eastern time, on the
Closing Date.
"Environmental Laws" shall mean and include, but not be
limited to, any applicable federal, state or local law, statute, charter,
ordinance, rule or regulation or any governmental agency interpretation, policy
or guidance, including without limitation applicable safety/environmental/health
laws such as but not limited to the Resource Conservation and Recovery Act of
1976, Comprehensive Environmental Response Compensation and Liability Act,
Federal Emergency Planning and Community Right-to-Know Law, the Clean Air Act,
the Clean Water Act, and the Toxic Substance Control Act, as any of the
foregoing have been amended, and any permit, order, directive, court ruling or
order or consent decree applicable to or affecting the Property or any other
property (real or personal) used by or relating to the Station in question
promulgated or issued pursuant to any Environmental Laws which pertains to,
governs, or controls the generation, storage, remediation or removal of
Contaminants or otherwise regulates the protection of health and the environment
including, but not limited to, any of the following activities, whether on site
or off site if such could materially affect the site: (i) the emission,
discharge, release, spilling or dumping of any Contaminant into the air, surface
water, ground water, soil or substrata; or (ii) the use, generation, processing,
sale, recycling, treatment, handling, storage, disposal, transportation,
labeling or any other management of any Contaminant.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Deposit" means the sum of Six Million Three Hundred
Thousand Dollars ($6,300,000.00) in the form of a letter of credit in favor of
Sellers to be deposited by Buyer with Star Media Group, Inc. (the "Escrow
Agent") on the date hereof to secure the obligations of Buyer to close under
this Agreement, with (i) such deposit being held by the Escrow Agent in
accordance with the Escrow Agreement executed among Buyer, Sellers and Escrow
Agent and (ii) the Escrow Deposit, and all earnings thereon, being returned to
Buyer upon the consummation of this Agreement.
"Excess Amount" shall have the meaning set forth in Section
10.5.
"Excluded Real Property" means the Real Property listed on
Schedule 2.2.
"Excluded Real Property Interests" means all interests in Real
Property listed on Schedule 2.2 hereto.
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"Excluded Tangible Personal Property" means (i) any assets
used primarily in the operation of any television broadcast station owned or
operated or programmed by the Sinclair Sellers or any Affiliate of the Sinclair
Sellers, (ii) any assets used primarily in the operation of any radio broadcast
stations owned, operated or programmed by Seller or Sinclair Sellers but not
included as a "Station" hereunder, other than the assets located at 5800
Foxridge Drive, Kansas City, Missouri which shall be included as Tangible
Personal Property; provided however, that the assets listed on the first
attachment ("Attachment 1") to Schedule 2.2 and located at 5800 Foxridge Drive
shall be Excluded Tangible Personal Property and shall be retained by Sellers;
(iii) any assets located at the Excluded Real Property, other than those assets
listed on the second attachment ("Attachment 2") to Schedule 2.2 which shall be
included as Tangible Personal Property and (iv) with respect to the Sinclair
Sellers, any tangible personal property located at Suite 220, Meadow Mill at
Woodberry, 3600 Clipper Mill Road, Baltimore, Maryland 21211.
"FCC" means the Federal Communications Commission.
"FCC Consent" means action by the FCC granting its consent to
the transfer of the FCC Licenses by Kansas City License (in the case of the KCMO
FCC Licenses) and by Kansas City Licensee, LLC (in the case of the KCFX FCC
Licenses) to Buyer as contemplated by this Agreement.
"FCC Licenses" means those licenses, permits and
authorizations issued by the FCC to Sellers and the Sinclair Sellers in
connection with the business and operations of the Stations.
"Final Order" shall mean an action by the Commission upon any
application for FCC Consent filed by the parties hereto for FCC consent,
approval or authorization, which action has not been reversed, stayed, enjoined,
set aside, annulled or suspended, and with respect to which action, no protest,
petition to deny, petition for rehearing or reconsideration, appeal or request
for stay is pending, and as to which action the time for filing of any such
protest, petition, appeal or request and any period during which the Commission
may reconsider or review such action on its own authority has expired.
"Hart-Scott-Rodino" means the Hart-Scott-Rodino Antitrust
Improvements Acts of 1976, as amended, and all Laws promulgated pursuant thereto
or in connection therewith.
"Intangibles" means all copyrights, trademarks, trade names,
service marks, service names, licenses, patents, permits, jingles, proprietary
information, technical information and data, machinery and equipment warranties,
and other similar intangible property rights and interests (and any goodwill
associated with any of the foregoing) applied for, issued to, or owned by any of
Sellers (in the case of intangible property used in connection with the
operations of KCMO-AM and KCMO-FM) and any of the Sinclair Sellers (in the case
of intangible property rights used in connection with the operations of KCFX-FM)
or under which such sellers are licensed or franchised and that are used in the
business and operations of the Stations, together with any additions thereto
between the date of this Agreement and the Closing Date.
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"KCFX FCC Licenses" means those licenses, permits and
authorizations issued by the FCC to Sinclair Radio of Kansas City Licensee, LLC
in connection with the business and operations of KCFX-FM and which are to be
assigned to Sellers under the Entercom/Sinclair Contract.
"KCMO FCC Licenses" means those licenses, permits and
authorizations issued by the FCC to Kansas City License in connection with the
business and operations of KCMO-AM and KCMO-FM.
"KCFX Licenses" means the KCFX FCC Licenses and all licenses,
permits, construction permits and other authorizations issued by the Federal
Aviation Administration, or any other federal, state, or local governmental
authorities to any of the Sinclair Sellers, currently in effect and used in
connection with the conduct of the business or operations of KCFX-FM, together
with any additions thereto between the date of this Agreement and the Closing
Date.
"KCMO Licenses" means the KCMO FCC Licenses and all licenses,
permits, construction permits and other authorizations issued by the Federal
Aviation Administration, or any other federal, state, or local governmental
authorities to any of Sellers, currently in effect and used in connection with
the conduct of the business or operations of KCMO-AM and KCMO-FM, together with
any additions thereto between the date of this Agreement and the Closing Date.
"Knowledge" or any derivative thereof with respect to the
Sellers means, exclusively, the actual Knowledge of the President and Chief
Executive Officer or the Chief Financial Officer of Entercom, the general
managers of the Stations, and any other employee of Entercom designated as a
"vice president" or any officer of any of the Sellers.
"Leased Real Property" means all real property and all
buildings and other improvements thereon and appurtenant thereto leased or held
by any of the Sellers (in connection with the operations of KCMO-AM and
KCMO-FM), other than the Excluded Real Property, and any of the Sinclair Sellers
(in connection with the operations of KCFX-FM) and used in the business or
operations of the Stations.
"Licenses" means the KCFX Licenses and the KCMO Licenses.
"Material Adverse Effect" means a material adverse effect on
the business, assets or financial condition of the Stations taken as a whole,
except for any such material adverse effect resulting from (a) general economic
conditions applicable to the radio broadcast industry, (b) general conditions in
the markets in which the Stations operate, or (c) circumstances that are not
likely to recur and either have been substantially remedied or can be
substantially remedied without substantial cost or delay.
"Material Contract" means those Assumed Contracts that are
designated on Schedules 3.5 and 3.7 as "Material Contracts."
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"Owned Real Property" means that certain parcel of real
property and all buildings and other improvements thereon and appurtenant
thereto owned by Entercom and used as a transmitter site for KCMO-AM.
"Permitted Encumbrances" means (a) encumbrances of a landlord,
or other statutory lien not yet due and payable, or a landlord's liens arising
in the ordinary course of business, (b) encumbrances arising in connection with
equipment or maintenance financing or leasing under the terms of the Contracts
set forth on the Schedules, which Contracts have been made available to Buyer,
(c) encumbrances for Taxes not yet delinquent or which are being contested in
good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on Sellers' books (in the case of KCMO-AM and KCMO-FM) or
the Sinclair Sellers' Books (in the case of KCFX-FM) in accordance with
generally accepted accounting principles, or (d) encumbrances that do not
materially detract from the value of any of the Assets or materially interfere
with the use thereof.
"Person" means an individual, corporation, association,
partnership, joint venture, trust, estate, limited liability company, limited
liability partnership, or other entity or organization.
"Real Property" means all real property and all buildings and
other improvements thereon and appurtenant thereto, whether or not owned, leased
or held by any of Sellers (in connection with the operations of KCMO-AM and
KCMO-FM) and leased by any of the Sinclair Sellers (in connection with the
operations of KCFX-FM) and used in the business or operations of the Stations,
but excluding the Excluded Real Property.
"Real Property Interests" means all interests in Owned Real
Property and Leased Real Property, including fee estates, leaseholds and
subleaseholds, purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon and appurtenant
thereto, owned or held by any of Sellers (in connection with the operations of
KCMO-AM and KCMO-FM) or held by any of the Sinclair Sellers (in connection with
the operations of KCFX-FM) and that are used in the business or operations of
the Stations, together with any additions, substitutions and replacements
thereof and thereto between the date of this Agreement and the Closing Date, but
excluding the Excluded Real Property Interests.
"Tangible Personal Property" means all machinery, equipment,
tools, vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts and other tangible personal property owned or held by any
of Sellers (in connection with the operations of KCMO-AM and KCMO-FM and listed
on Attachment 2 to Schedule 2.2 hereof ) and any of the Sinclair Sellers (in
connection with the operations of KCFX-FM and the other stations currently
operated at the KCFX Studio) and that is used or useful in the conduct of the
business or operations of the Stations, together with any additions,
substitutions and replacements thereof and thereto between the date of this
Agreement and the Closing Date, but excluding the Excluded Tangible Personal
Property.
"Tax" means any federal, state, local, or foreign income,
gross receipts, windfall profits, severance, property, production, sales, use,
license, excise, franchise, capital, transfer, employment, withholding, or other
tax or similar governmental assessment, together with any
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interest, additions, or penalties with respect thereto and any interest in
respect of such additions or penalties.
"Tax Return" means any tax return, declaration of estimated
tax, tax report or other tax statement, or any other similar filing required to
be submitted to any governmental authority with respect to any Tax.
"Threshold Amount" has the meaning set forth in Section 10.5.
"Unexpended Remediation Amount" shall mean Three Hundred Fifty
Thousand Dollars ($350,000) minus any amounts previously expended by Sellers to
remediate any of the Real Property pursuant to Section 6.15.
1.2 Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have the meanings set forth in the sections
indicated:
Term Section
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Balance Sheet Date Section 3.10
Benefit Arrangement Section 3.14 (a)(v)
Benefit Plans Section Section 3.14(a)(ii)
Buyer Preamble
Buyer's Plan Section 4.8
Claimant Section 10.4
Collection Period Section 6.7(a)
Confidentiality Agreement Section 6.4
Deferred Contract Section 5.11(b)
Designee Section 11.3(b)
Election Section 6.22
Employees Section 3.14(a)
Entercom Recitals
Entercom Kansas City Recitals
Entercom Kansas City License Recitals
Entercom/Sinclair Contract Recitals
Environmental Assessments Section 6.15
Environmental Laws Section 3.16
Environmental Threshold Amount Section 6.15
Estimated Purchase Price Section 2.4(a)
Excluded Real Property Interests Section 1.1
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Excluded Tangible Personal Property Section 1.1
FCC Objection Section 7.1(c)
FTC Section 4.6
Financial Statements Section 3.10
Hart-Scott-Rodino Filing Section 6.2
Indemnity Cap Section 10.5
Indemnifying Party Section 10.4
Initial Employee Cap Section 6.10(g)
Initial Purchase Price Section 2.3
KCFX Balance Sheet Date Section 3.10
KCFX Financial Statements Section 3.10
KCFX Accounts Receivable Section 6.7
KCMO Balance Sheet Date Section 3.10
KCMO Financial Statements Section 3.10
KCMO Studio Section 6.25
Lease Section 6.11
Multiemployer Plan Section 3.14(a)(ii)
Operational Equipment Section 3.22
Pension Plan Section 3.14(a)(iii)
Purchase Price Section 2.3
Scheduled Retention Agreements Section 6.10(g)
Section 6.9 Amount Section 6.9
Seller Preamble
Seller Entities Section 6.10(i)
Sellers' Employees Section 6.10(i)
Shared Property Agreement Section 6.11
Sinclair Sellers Recitals
Stations Recitals
Title Commitment Section 6.18
Transferred Employees Section 6.10
Transition Period Section 6.25
Welfare Plan Section 3.14(a)(i)
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SECTION 2.
----------
EXCHANGE AND TRANSFER OF ASSETS; ASSET VALUE
--------------------------------------------
2.1 Agreement to Exchange and Transfer. Subject to the terms and
conditions set forth in this Agreement with respect to the Stations, Sellers
hereby agree to transfer, convey, assign and deliver to Buyer on the Closing
Date and to cause the Sinclair Sellers to transfer, convey, assign and deliver
to Buyer on the Closing Date, and Buyer agrees to acquire, all of Sellers' and
the Sinclair Sellers' right, title and interest in the tangible and intangible
assets used in connection with the conduct of the business or operations of the
Stations, together with any additions thereto between the date of this Agreement
and the Closing Date, but excluding the assets described in Section 2.2, free
and clear of any claims, liabilities, security interests, mortgages, liens,
pledges, charges, or encumbrances of any nature whatsoever (except for Permitted
Encumbrances), including the following:
(a) The Tangible Personal Property;
(b) The Real Property Interests;
(c) The Licenses;
(d) The Assumed Contracts;
(e) The Intangibles, including the goodwill of the Stations, if
any;
(f) Reserved.
(g) All of Sellers' and the Sinclair Sellers' proprietary
information, technical information and data, machinery and equipment warranties,
maps, computer discs and tapes, plans, diagrams, blueprints and schematics,
including filings with the FCC, in each case to the extent relating to the
business and operation of the Stations;
(h) All choses in action of any of Sellers and any of the
Sinclair Sellers' relating to the Stations to the extent they relate to the
period after the Effective Time; and
(i) All books and records relating to the business or operations
of the Stations, including executed copies of the Assumed Contracts, and all
records required by the FCC to be kept by the Stations.
2.2 Excluded Assets. The Assets shall exclude the following (other than
those Assets listed on Attachment 2 to Schedule 2.2):
(a) All of each of Sellers' and the Sinclair Sellers' cash, cash
equivalents and deposits, all interest payable in connection with any such items
and rights in and to bank accounts, marketable and other securities and similar
investments of Sellers and the Sinclair Sellers;
(b) Any insurance policies, promissory notes, amounts due to any
of Sellers and the Sinclair Sellers from employees, bonds, letters of credit,
certificates of deposit, or other
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similar items, and any cash surrender value in regard thereto; provided, that in
the event Sellers are obligated to assign to Buyer the proceeds of any such
insurance policy or to cause the assignment of such proceeds at the time a
Closing occurs under Section 6.3, such proceeds shall be included in the Assets;
(c) Any pension, profit-sharing, or employee benefit plans,
including all of Sellers' and the Sinclair Sellers' interests in any Welfare
Plan, Pension Plan or Benefit Arrangement (each as defined in Section 3.14(a));
(d) All Tangible Personal Property disposed of or consumed in the
ordinary course of business as permitted by this Agreement;
(e) All Tax Returns and supporting materials, all original
financial statements and supporting materials, all books and records that
Sellers and the Sinclair Sellers are required by law to retain, all of Sellers'
and the Sinclair Sellers' organizational documents, corporate books and records
(including minute books and stock ledgers) and originals of account books of
original entry, all records of Sellers and the Sinclair Sellers relating to the
sale of the Assets and all records and documents related to any assets excluded
pursuant to this Section 2.2;
(f) Any interest in and to any refunds of federal, state, or
local franchise, income, or other taxes for periods (or portions thereof) ending
on or prior to the Closing Date;
(g) All Accounts Receivable;
(h) All rights and claims of Sellers and the Sinclair Sellers
whether mature, contingent or otherwise, against third parties relating to the
Assets of the Stations, whether in tort, contract or otherwise, other than
rights and claims against third parties relating to the Assets which have as
their basis loss, damage or impairment of or to any of the Assets and which
loss, damage or impairment has not been restored or repaired prior to the
Closing in which any of the Assets which has been so damaged or impaired is
being acquired by Buyer (or in the case of a lost asset, that would have been
acquired but for such loss);
(i) Any Contracts which are not Assumed Contracts;
(j) All of each of Sellers' and the Sinclair Sellers' deposits
and prepaid expenses; provided, any deposits and prepaid expenses shall be
included in the Assets to the extent that Sellers or the Sinclair Sellers
receive a credit therefor in the proration of the Purchase Price pursuant to
Section 2.3(b);
(k) All rights of Sellers under or pursuant to this Agreement (or
any other agreements contemplated hereby);
(l) All rights to the names "Entercom" "Entercom Communications,"
"Sinclair Communications," "Sinclair Broadcast Group," "Sinclair," and any logo
or variation thereof and goodwill associated therewith;
(m) The Excluded Real Property;
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(n) The Excluded Real Property Interests;
(o) The Excluded Tangible Personal Property;
(p) All assets owned by the Sinclair Sellers and used in
connection with any television or radio broadcast stations owned and/or
programmed by any of the Sinclair Sellers or Sinclair Sellers have the right to
acquire other than the Stations, including (without limitation) all assets
related to Sellers' operation and ownership of the Interstate Road Network and
the Road Gang Coast to Coast Network; KPNT-FM, St. Genevieve, MO; WVRV-FM, East
St. Louis, IL; WIL-FM, St. Louis, MO; WRTH-AM, St. Louis, MO; KIHT-FM, St.
Louis, MO; KXOK-FM, St. Louis, MO; KUPN-AM, Mission, KS.
(q) All shares of capital stock, partnership interests, interests
in limited liability companies or other equity interest, including, but not
limited to, any options, warrants or voting trusts relating thereto which are
owned by Sellers or the Sinclair Sellers and not expressly specified in Section
2.1.
2.3 Purchase Price.
2.4 (a) Initial Purchase Price. The purchase price of the Assets shall
be One Hundred and Thirteen Million U.S. Dollars ($113,000,000) (the "Initial
Purchase Price"), adjusted as provided below (the "Purchase Price"). The
Purchase Price shall be paid at Closing.
(b) Prorations. The Purchase Price shall be increased or
decreased as required to effectuate the proration of revenues and expenses, as
set forth below. All revenues and all expenses arising from the operation of the
Stations, including tower rental, business and license fees, utility charges,
real property and personal property and other similar Taxes and assessments
levied against or with respect to the Assets, property and equipment rentals,
applicable copyright or other fees, sales and service charges, payments due
under film or programming license agreements, and employee compensation,
including wages (including bonuses which constitute wages), salaries, accrued
sick leave and related Taxes shall be prorated between Buyer and Sellers as to
the Stations at Closing in accordance with the principle that Sellers shall
receive all revenues and shall be responsible for all expenses, costs and
liabilities allocable to the operations of the Stations for the period prior to
the Effective Time of Closing, and Buyer shall receive all revenues and shall be
responsible for all expenses, costs and obligations allocable to the operations
of the Stations for the period after the Effective Time of Closing, subject to
the following:
(i) There shall be no adjustment for, and Sellers
shall remain solely liable with respect to, any Contracts not included
in the Assumed Contracts and any other obligation or liability not
being assumed by Buyer in accordance with Section 2.2. An adjustment
and proration shall be made in favor of Buyer to the extent that Buyer
assumes any liability under any Assumed Contract to refund (or to
credit against payments otherwise due) any security deposit or similar
prepayment paid to Sellers by any lessee or other third party. An
adjustment and proration shall be made in favor of Sellers to the
extent Buyer receives the right to receive a refund (or to a credit
against
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payments otherwise due) under any Assumed Contract to any security
deposit or similar pre-payment paid by or on behalf of Sellers.
(ii) An adjustment and proration shall be made in
favor of Sellers for the amount, if any, by which the fair market value
of the goods or services to be received by the Stations under its trade
or barter agreements as of the Effective Time exceeds by more than
Fifty Thousand Dollars ($50,000) the fair market value of any
advertising time remaining to be run by the Stations as of the
Effective Time. An adjustment and proration shall be made in favor of
Buyer to the extent that the amount of any advertising time remaining
to be run by the Stations under its trade or barter agreements as of
the Effective Time exceeds by more than Fifty Thousand Dollars
($50,000) the fair market value of the goods or services to be received
by the Stations as of the Effective Time.
(iii) There shall be no proration for program barter.
(iv) Reserved.
(v) An adjustment and proration shall be made in
favor of Sellers for the amount, if any, of prepaid expense, the
benefit of which accrues to Buyer hereunder, and other current assets
acquired by Buyer hereunder which are paid by Sellers to the extent
such prepaid expenses and other current assets relate to the period
after the Effective Time.
(vi) There shall be no proration for any payment(s)
made by Interep to any of the Sellers in connection with obtaining the
right to serve as the national sales representative of any of the
Stations.
(c) Manner of Determining Adjustments. The Purchase Price, taking
into account the adjustments and prorations pursuant to Section 2.3(b), will be
determined in accordance with the following procedures:
(i) Sellers shall prepare and deliver to Buyer not
later than five (5) days before the Closing Date a preliminary
settlement statement which shall set forth Sellers' good faith estimate
of the adjustments to the Purchase Price under Section 2.3(b). The
preliminary settlement statement shall (A) contain all information
reasonably necessary to determine the adjustments to the Purchase Price
under Section 2.3(b) as to the Stations, to the extent such adjustments
can be determined or estimated as of the date of the preliminary
settlement statement, and such other information as may be reasonably
requested by Buyer, and (B) be certified by Sellers to be true and
complete to Sellers' Knowledge as of the date thereof.
(ii) Not later than ninety (90) days after the
Closing Date, Buyer will deliver to Sellers a statement setting forth
Buyer's determination of the Purchase Price and the calculation thereof
pursuant to Section 2.3(b) as to the Stations. Buyer's statement (A)
shall contain all information reasonably necessary to determine the
adjustments to the Purchase Price under Section 2.3(b), and such other
information as may be reasonably requested by Sellers, and (B) shall be
certified by Buyer to be true and
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complete to Buyer's knowledge as of the date thereof. If Sellers
dispute the amount of such Purchase Price determined by Buyer, they
shall deliver to Buyer within thirty (30) days after receipt of Buyer's
statement a statement setting forth their determination of the amount
of such Purchase Price. If Sellers notify Buyer of its acceptance of
Buyer's statement, or if Sellers fail to deliver their statement within
the thirty (30)-day period specified in the preceding sentence, Buyer's
determination of the Purchase Price shall be conclusive and binding on
the parties as of the last day of the thirty (30)-day period.
(iii) Buyer and Sellers shall use good faith efforts
to resolve any dispute involving the determination of the Purchase
Price paid by Buyer at the Closing. If the parties are unable to
resolve the dispute within forty-five (45) days following the delivery
of all of Buyer's statements to be provided pursuant to Section
2.3(c)(ii) after the Closing, Buyer and Sellers shall jointly designate
an independent certified public accounting firm of national standing
which has not regularly provided services to either the Buyer or
Sellers in the last three (3) years, who shall be knowledgeable and
experienced in the operation of radio broadcasting stations, to resolve
the dispute. If the parties are unable to agree on the designation of
an independent certified public accounting firm, the selection of the
accounting firm to resolve the dispute shall be submitted to
arbitration to be held in Philadelphia, Pennsylvania, in accordance
with the commercial arbitration rules of the American Arbitration
Association. The accounting firm's resolution of the dispute shall be
final and binding on the parties, and a judgment may be entered thereon
in any court of competent jurisdiction. Any fees of this accounting
firm, and, if necessary, for arbitration to select such accountant,
shall be divided equally between the parties.
(iv) Buyer acknowledges that prorations pursuant to
both clauses (i) and (ii) above with respect to revenues and expenses
in connection with the operations of KCFX-FM may, at the Sellers'
election, in whole or part, be made between Buyer and the Sinclair
Sellers, with an appropriate increase or decrease in the Purchase
Price; provided, however, that in the event of a dispute between Buyer
and the Sinclair Sellers concerning the adjustments to the Purchase
Price and the calculation thereof pursuant to Section 2.3(b), Buyer
shall settle any such dispute directly with Sellers in accordance with
Section 2.3 (c)(iii).
2.5 Payment of Purchase.
(a) Payment of Estimated Purchase Price At Closing. The Initial
Purchase Price, adjusted by the estimated adjustments pursuant to Section 2.3(b)
as set forth in Sellers' preliminary settlement statement pursuant to Section
2.3(c)(i), is referred to as the "Estimated Purchase Price." At the Closing,
Buyer shall pay or cause to be paid to Sellers the Estimated Purchase Price for
the Stations, by federal wire transfer of same-day funds pursuant to wire
transfer instructions, which instructions shall be delivered to Buyer by Sellers
at least two (2) business days prior to the Closing Date.
(b) Return of Escrow Deposit at Closing. Buyer and Sellers shall
cause the Escrow Deposit to be returned to Buyer at Closing.
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(c) Payments to Reflect Adjustments. The Purchase Price as
finally determined pursuant to Section 2.3(c) shall be paid as follows:
(i) If the Purchase Price as finally determined
pursuant to Section 2.3(c) exceeds the Estimated Purchase Price, Buyer
shall pay to Sellers, in immediately available funds within five (5)
business days after the date on which the Purchase Price is determined
pursuant to Section 2.3(c), the difference between the Purchase Price
and the Estimated Purchase Price.
(ii) If the Purchase Price as finally determined
pursuant to Section 2.3(c) is less than the Estimated Purchase Price,
Sellers shall pay to Buyer, in immediately available funds within five
(5) business days after the date on which the Purchase Price is
determined pursuant to Section 2.3(c), the difference between the
Purchase Price and the Estimated Purchase Price.
(d) Payment for KCFX-FM.
At Seller's election, which election shall be delivered in
writing to Buyer no later than three days prior to Closing, Buyer shall pay the
portion of the Estimated Purchase Price allocable to KCFX-FM to the Sinclair
Sellers at Closing by wire transfer to an account designated by Sellers in
accordance with Section 2.4(a), and pay to the Sinclair Sellers or receive from
the Sinclair Sellers, as the case may be, adjustments in accordance with Section
2.4(c) to the extent allocable to KCFX-FM.
2.6 Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge and perform all obligations
and liabilities of Sellers (with respect to obligations and liabilities arising
out of the business and operations of KCMO-AM and KCMO-FM) and of the Sinclair
Sellers (with respect to obligations and liabilities arising out of the business
and operations of KCFX-FM) under the Licenses, the Assumed Contracts or as
otherwise specifically provided for herein to the extent that either (i) the
obligations and liabilities relate to the time after the Effective Time of the
Closing, or (ii) the Purchase Price was reduced pursuant to Section 2.3(b) as a
result of the proration of such obligations and liabilities. Buyer shall not
assume any other obligations or liabilities of Sellers or the Sinclair Sellers,
including (1) any obligations or liabilities under any Contract not included in
the Assumed Contracts, (2) any obligations or liabilities under the Assumed
Contracts relating to the period prior to the Effective Time of the Closing to
which such Assumed Contracts relate, except insofar as an adjustment therefor is
made in favor of Buyer under Section 2.3(b), (3) any claims or pending
litigation or proceedings relating to the operation of the Stations prior to the
Closing or (4) any obligations or liabilities of Sellers or the Sinclair Sellers
under any employee pension, retirement, or other benefit plans.
SECTION 3.
----------
REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------
Each Seller represents and warrants to Buyer as of the date
hereof and as of the Closing Date (except for representations and warranties
that speak as of a specific date or time, in
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which case, such representations and warranties shall be true and complete as of
such date or time) as follows:
3.1 Organization and Authority of Sellers. Each Seller is and at
Closing each Sinclair Seller will be a corporation, limited liability company or
limited partnership (as applicable), duly organized, validly existing and in
good standing under the laws of the State listed on Schedule 3.1 next to each
such Seller's or Sinclair Seller's name. Each Seller has and at Closing each
Sinclair Seller will have the requisite corporate power and authority (or other
appropriate power and authority based on the structure of such Seller or
Sinclair Seller) to own, lease and operate its properties, to carry on its
business in the places where such properties are now, or in the case of the
Sinclair Sellers at Closing will be, owned, leased, or operated and such
business is now, or in the case of the Sinclair Sellers at Closing will be,
conducted, and, in the case of the Sellers, to execute, deliver and perform this
Agreement and the documents contemplated hereby according to their respective
terms. Each Seller is and at Closing each Sinclair Seller will be duly qualified
and in good standing in each jurisdiction listed on Schedule 3.1 next to each
such Seller's or Sinclair Seller's name, which are all jurisdictions in which
such qualification is required. Except as set forth on Schedule 3.1, no Seller
is and no Sinclair Seller will be a participant in any joint venture or
partnership with any other Person with respect to any part of the operations of
the Stations or any of the Assets.
3.2 Authorization and Binding Obligation. The execution, delivery and
performance of this Agreement by each Seller have been duly authorized by all
necessary corporate or other required action on the part of each Seller. This
Agreement has been duly executed and delivered by each Seller and constitutes
its legal, valid and binding obligation, enforceable against it in accordance
with its terms except as the enforceability of this Agreement may be affected by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements; Consents. Subject to obtaining
the FCC Consent provided for in Section 6.1, the filings required by
Hart-Scott-Rodino provided for in Section 6.2 and the other Consents described
in Schedules 3.3 and 3.7, the execution, delivery and performance by each Seller
of this Agreement and the documents contemplated hereby (with or without the
giving of notice, the lapse of time, or both): (a) do not require the consent of
any third party; (b) will not conflict with any provision of the Articles of
Incorporation, Bylaws or other organizational documents of Sellers; (c) will not
conflict with, result in a breach of, or constitute a default under any
applicable law, judgment, order, ordinance, injunction, decree, rule,
regulation, or ruling of any court or governmental instrumentality; (d) will not
conflict with, constitute grounds for termination of, result in a breach of,
constitute a default under, or accelerate or permit the acceleration of any
performance required by the terms of, any material agreement, instrument,
license, or permit to which any Seller is a party or by which any Seller may be
bound legally; and (e) will not create any claim, liability, mortgage, lien,
pledge, condition, charge, or encumbrance of any nature whatsoever upon any of
the Assets. Except for the FCC Consent provided for in Section 6.1, the filings
required by Hart-Scott-Rodino provided for in Section 6.2 and the other Consents
described in Schedules 3.3 and 3.7, no consent, approval, permit, or
authorization of, or declaration to, or filing with any governmental or
regulatory authority or any other third party is required (a) to consummate this
Agreement and
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the transactions contemplated hereby, or (b) to permit Sellers to transfer and
convey the Assets to Buyer.
3.4 Governmental Licenses. Schedule 3.4 includes a true and complete
list of the FCC Licenses. Sellers have made available to Buyer true and complete
copies of the main Licenses (including any amendments and other modifications
thereto). The Licenses have been validly issued, and Kansas City License is the
authorized legal holder of the KCMO FCC Licenses, a list of which is set forth
on Schedule 3.4 together with a list of the KCFX Licenses. The Licenses and the
FCC Licenses listed on Schedule 3.4 comprise all of the material licenses,
permits, and other authorizations required from any governmental or regulatory
authority for the lawful conduct in all material respects of the business and
operations of the Stations in the manner and to the full extent they are now
conducted, and, except as otherwise disclosed on Schedule 3.4, none of the
Licenses is subject to any unusual or special restriction or condition that
could reasonably be expected to limit materially the full operation of the
Stations as now operated. The FCC Licenses are in full force and effect, are
valid for the balance of the current license term applicable generally to radio
stations licensed to the same communities as the Stations, are unimpaired by any
acts or omissions of any Seller or any of its Affiliates, or the employees,
agents, officers, directors, or shareholder of any Seller or any of its
Affiliates (in the case of the KCMO FCC Licenses) and are unimpaired by any acts
or omission of any of the Sinclair Sellers or any of their Affiliates, or the
employees, agents, officers, directors or shareholders of any of the Sinclair
Sellers or any of their Affiliates (in the case of the KCFX Licenses), and are
free and clear of any restrictions which might limit the full operation of the
Stations in the manner and to the full extent as they are now operated (other
than restrictions under the terms of the licenses themselves or applicable to
the radio broadcast industry generally). Except as listed on Schedule 3.4
hereto, there are no applications, proceedings or complaints pending or, to the
Knowledge of any Seller, threatened which may have an adverse effect on the
business or operation of the Stations (other than rulemaking proceedings that
apply to the radio broadcasting industry generally). Except as disclosed on
Schedule 3.4 hereto, no Seller is aware of any reason why any of the FCC
Licenses might not be renewed in the ordinary course for a full term without
material qualifications or of any reason why any of the FCC Licenses might be
revoked. The Stations are in compliance with the Commission's policy on exposure
to radio frequency radiation. No renewal of any FCC License would constitute a
major environmental action under the rules of the Commission. To the Knowledge
of Sellers, there are no facts relating to Sellers which, under the
Communications Act of 1934, as amended, or the existing rules of the Commission,
would (a) disqualify any Seller from assigning any of its FCC Licenses to Buyer,
(b) cause the filing of any objection to the assignment of the FCC Licenses to
Buyer, (c) lead to a delay in the processing by the FCC of the applications of
the FCC Licenses to Buyer, (d) lead to a delay in the termination of the waiting
period required by Hart-Scott-Rodino, or (e) disqualify any Seller from
consummating the transactions contemplated herein within the times contemplated
herein. An appropriate public inspection file for each Station is maintained at
the Station's studio in accordance with Commission rules. Access to the
Stations' transmission facilities are restricted in accordance with the policies
of the Commission.
3.5 Real Property. Schedule 3.5 contains a complete description of all
Real Property Interests (including street address, owner, and use thereof) other
than the Excluded Real Property Interests. The Real Property Interests listed on
Schedule 3.5, together with the Real Property
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Interests which will be created by the execution of the Lease (as defined
herein) by Buyer and the appropriate Sellers, comprises all interests in real
property necessary to conduct the business and operations of the Stations.
Except as described on Schedule 3.5, Sellers have good fee simple title to all
fee estates included in the Real Property Interests, and Sellers and the
Sinclair Sellers collectively have good title to all other Real Property
Interests, in each case free and clear of all liens, mortgages, pledges,
covenants, easements, restrictions, encroachments, leases, charges, and other
claims and encumbrances, except for Permitted Encumbrances. Each leasehold or
subleasehold interest included as a Material Contract on Schedule 3.5 is legal,
valid, binding, enforceable and in full force and effect. To Sellers' Knowledge,
each leasehold or subleasehold designated in the Real Property Interests, but
not designated as Material Contracts on Schedule 3.5 is legal, binding and
enforceable and in full force and effect. Neither the Seller party thereto (in
the case of leases and subleases used in the operations of KCMO-AM and KCMO-FM),
nor the Sinclair Seller party thereto (in the case of leases and subleases used
in the operations of KCFX-FM), or to Sellers' Knowledge any other party thereto,
is in default, violation or breach under any lease or sublease and no event has
occurred and is continuing that constitutes (with notice or passage of time or
both) a default, violation or breach thereunder. Sellers have not received any
notice of a default, offset or counterclaim under any lease or sublease used in
the operation of KCMO-AM and KCMO-FM. The Sinclair Sellers have not notified
Sellers of any default, offset or counterclaim under any lease or sublease with
respect to the Real Property Interests used in the operation of KCFX-FM. As of
the date hereof and as of the Closing Date, Sellers enjoy peaceful and
undisturbed possession of the leased Real Property Interests used in the
operation of KCMO-AM and KCMO-FM. As of the date hereof and as of the Closing
Date, Sinclair Sellers enjoy peaceful and undisturbed possession of the leased
Real Property Interests used in the operation of KCFX-FM. So long as Sellers and
the Sinclair Sellers fulfill their obligations under the leases for the leased
Real Property Interests, those of the Sellers and Sinclair Sellers which are the
parties to such leases have enforceable rights to nondisturbance and quiet
enjoyment against its lessor or sublessor, and, to the Knowledge of Sellers,
except as set forth in Schedule 3.5, no third party holds any interest in the
leased premises with the right to foreclose upon Sellers' leasehold or
subleasehold interest. Sellers have legal and practical access to all of the
Owned Real Property and Sellers and the Sinclair Sellers collectively have legal
and practical access to all of the Leased Real Property, as applicable. Except
as otherwise disclosed in Schedule 3.5, all towers, guy anchors, ground radials,
and buildings and other improvements included in the Assets are located entirely
on the Owned Real Property or the Leased Real Property, as applicable, listed in
Schedule 3.5. All Owned Real Property and Leased Real Property (including the
improvements thereon) (a) is in good condition and repair consistent with its
current use, (b) is available for immediate use in the conduct of the business
and operations of the Stations, and (c) complies in all material respects with
all applicable building or zoning codes (in the case of Owned Real Property and
Leased Real Property used in the operations of KCMO-AM and KCMO-FM) or with all
applicable material building or zoning codes (in the case of Owned Real Property
and Leased Real Property used in the operations of KCFX-FM) and the regulations
of any governmental authority having jurisdiction, except to the extent that the
current use by any of Sellers or the Sinclair Sellers, as the case may be, while
permitted, constitutes or would constitute a "nonconforming use" under current
zoning or land use regulations. No eminent domain or condemnation proceedings
are pending or, to the Knowledge of Sellers, threatened with respect to any Real
Property Interests.
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3.6 Tangible Personal Property. Except as described in Schedule 3.6,
Sellers own and have good title to each item of Tangible Personal Property used
in the operations of KCMO-AM and KCMO-FM and the Sinclair Sellers own and have
good title to each item of Tangible Personal Property used in the operations of
KCFX-FM, and none of the Tangible Personal Property owned by such sellers is
subject to any security interest, mortgage, pledge, conditional sales agreement,
or other lien or encumbrance, except for Permitted Encumbrances. With allowance
for normal repairs, maintenance, wear and obsolescence, each material item of
Tangible Personal Property is in good operation condition and repair and is
available for immediate use in the business and operations of the Stations. All
material items of transmitting and studio equipment included in the Tangible
Personal Property (a) have been maintained in a manner consistent with generally
accepted standards of good engineering practice, and (b) will permit the
Stations and any unit auxiliaries thereto to operate in accordance with the
terms of the FCC Licenses and the rules and regulations of the FCC and in all
material respects with all other applicable federal, state and local statutes,
ordinances, rules and regulations.
3.7 Contracts. Schedule 3.7 is a true and complete list of all
Contracts which either (a) have a remaining term (after taking into account any
cancellation rights of Sellers or the Sinclair Sellers) of more than one year
after the date hereof or (b) require expenditures in excess of Twenty Five
Thousand Dollars ($25,000) in any calendar year after the date hereof, except
contracts with advertisers for production or the sale of advertising time on the
Stations for cash that may be canceled by Sellers with respect to KCMO-AM and
KCMO-FM or the Sinclair Sellers with respect to KCFX-FM without penalty on not
more than ninety days' notice. Sellers have delivered or made available to Buyer
true and complete copies of all written Assumed Contracts, and true and complete
descriptions of all oral Assumed Contracts (including any amendments and other
modifications to such Contracts). Other than the Contracts listed on Schedule
3.7, Schedule 3.5, and the Lease, Sellers with respect to the business and
operations of KCMO-AM and KCMO-FM, and the Sinclair Sellers with respect to the
business and operations of KCFX-FM, require no material contract, lease, or
other agreement to enable them to carry on their business in all material
respects. All of the Contracts are in full force and effect and are valid,
binding and enforceable in accordance with their terms except as the
enforceability of such Contracts may be affected by bankruptcy, insolvency, or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies. Neither the Seller party thereto in the
case of KCMO-AM and KCMO-FM nor the Sinclair Seller party thereto in the case of
KCFX-FM or, to the Knowledge of Sellers, any other party thereto, is in default,
violation or breach in any material respect under any Contract and no event has
occurred and is continuing that constitutes (with notice or passage of time or
both) a default, violation, or breach in any material respect thereunder. Except
as disclosed on Schedule 3.7, other than in the ordinary course of business,
Sellers do not have Knowledge of any intention by any party to any Contract (a)
to terminate such Contract or amend the terms thereof, (b) to refuse to renew
the Contract upon expiration of its term, or (c) to renew the Contract upon
expiration only on terms and conditions that are more onerous than those now
existing. Except for the need to obtain the Consents listed on Schedule 3.7, the
exchange and transfer of the Assets in accordance with this Agreement will not
affect the validity, enforceability, or continuation of any of the Contracts.
3.8 Intangibles. Sellers have provided or made available to Buyer
copies of all documents establishing or evidencing the Intangibles. Sellers own
or have a valid license to use all of the
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Intangibles, other than the Intangibles used in the operation of KCFX-FM, as to
which one or more of the Sinclair Sellers own or have a valid license to use.
Other than with respect to matters generally affecting the radio broadcasting
industry and not particular to Sellers (in the case of KCMO-AM and KCMO-FM), or
not particular to the Sinclair Sellers (in the case of KCFX-FM), and except as
set forth on Schedule 3.8, neither Sellers (in the case of KCMO-AM and KCMO-FM)
nor the Sinclair Sellers (in the case of KCFX-FM), have received any notice or
demand alleging that Sellers or the Sinclair Sellers are infringing upon or
otherwise acting adversely to any trademarks, trade names, service marks,
service names, copyrights, patents, patent applications, know-how, methods, or
processes owned by any other Person, and there is no claim or action pending, or
to the Knowledge of Sellers threatened, with respect thereto. To the Knowledge
of Sellers, except as set forth on Schedule 3.8, no other Person is infringing
upon Sellers' or the Sinclair Sellers' rights or ownership interest in the
Intangibles.
3.9 Title to Properties. Except as disclosed in Schedule 3.5 or 3.6,
Sellers, with respect to the assets used in the operations of KCMO-AM and
KCMO-FM, and the Sinclair Sellers, with respect to the assets used in the
operations of KCFX-FM, have good and marketable title to the Assets subject to
no mortgages, pledges, liens, security interests, encumbrances, or other charges
or rights of others of any kind or nature except for Permitted Encumbrances.
3.10 Financial Statements. Sellers have furnished Buyer with true and
complete copies of unaudited financial statements of KCMO-AM and KCMO-FM
containing a balance sheet and statement of income, as at and for the fiscal
year ended December 31, 1999, and an unaudited balance sheet and statement of
income as at and for the four months ended April 30, 2000 (the "KCMO Balance
Sheet Date") (collectively, the "KCMO Financial Statements"). Sellers have
furnished Buyer with true and complete copies of unaudited financial statements
of KCFX-FM containing a balance sheet and statement of income, as at and for the
fiscal year ended December 31, 1998, and an unaudited balance sheet and
statement of income as at and for the seven (7) months ended July 31, 1999 (the
"KCFX Balance Sheet Date") (collectively, the "KCFX Financial Statements") (the
KCMO Financial Statements and the KCFX Financial Statements, the "Financial
Statements"). To the extent the Financial Statements relate to the period of
time during which the Stations were owned by the Sellers (or any Affiliate
thereof) in the case of KCMO-AM and KCMO-FM or the Sinclair Sellers in the case
of KCFX-FM, and the Financial Statements have been prepared from the books and
records of such sellers and have been prepared in a manner consistent with the
audited Financial Statements of such sellers, except for the absence of
footnotes and certain year-end adjustments. The Financial Statements accurately
reflect the books, records and accounts of Sellers (in the case of KCMO-AM and
KCMO-FM), and the Sinclair Sellers (in the case of KCFX-FM), and present fairly
and accurately the financial condition of the Stations as at their respective
dates and the results of operations for the periods then ended and none of the
Financial Statements understates in any material respect the normal and
customary costs and expenses of conducting the business or operations of the
Stations in any material respect as currently conducted by Sellers or the
Sinclair Sellers, as the case may be, or otherwise materially inaccurately
reflects the operations of the Stations; provided, that the foregoing
representations are given only to the Sellers' Knowledge to the extent the
Financial Statements relate to a period of time during which the Stations were
not owned by Sellers (or an Affiliate thereof).
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3.11 Taxes. Except as set forth in Schedule 3.11, Sellers and the
Sinclair Sellers have filed or caused to be filed all Tax Returns that are
required to be filed with respect to their ownership and operation of the
Stations, and have paid or caused to be paid all Taxes shown on those returns or
on any Tax assessment received by them to the extent that such Taxes have become
due, or have set aside on their books adequate reserves (segregated to the
extent required by generally accepted accounting principles) with respect
thereto. Except as set forth on Schedule 3.11, there are no legal,
administrative, or other Tax proceedings presently pending, and there are no
grounds existing pursuant to which Sellers or the Sinclair Sellers are or could
be made liable for any Taxes, the liability for which could extend to Buyer as
transferee of the business of the Stations.
3.12 Insurance. Schedule 3.12 is a true and complete list of all
insurance policies of or covering Sellers, in respect of the assets used in the
operations of KCMO-AM and KCMO-FM, and the Sinclair Sellers, in respect of the
assets used in the operations of KCFX-FM. All policies of insurance listed in
Schedule 3.12 are in full force and effect as of the date hereof. During the
past three years, no insurance policy of Sellers or the Sinclair Sellers
pertaining to the Stations has been canceled by the insurer and, except as set
forth on Schedule 3.12, no application of Sellers or the Sinclair Sellers for
insurance pertaining to the Stations has been rejected by any insurer.
3.13 Reports. All material returns, reports and statements that Sellers
or the Sinclair Sellers are currently required to file with the FCC or Federal
Aviation Administration pertaining to the Stations have been filed, and all
reporting requirements of the FCC and Federal Aviation Administration have been
complied with in all material respects. All of such returns, reports and
statements, as filed, satisfy all applicable legal requirements.
3.14 Personnel and Employee Benefits.
(a) Employees and Compensation. Schedule 3.14 contains a true and
complete list of all employees of Sellers and the Sinclair Sellers each of whom
Buyer is required to make an offer of employment pursuant to Section 6.10 if the
employee remains employed with one of Sellers on the Closing Date. The salary
and bonus, if any, to which each such employee is currently entitled has been
provided to Buyer previously. As of the date of this Agreement, Sellers have no
Knowledge that any General Manager, Sales Manager, or Program Director employed
at the Stations currently plans to terminate employment, whether by reason of
the transactions contemplated by this Agreement or otherwise. Schedule 3.14 also
contains a true and complete list of all employee benefit plans or arrangements
covering the employees employed at the Stations (the "Employees") including,
with respect to the Employees any:
(i) "Employee welfare benefit plan," as defined in
Section 3(1) of ERISA, that is maintained or administered by any of
Sellers or any of the Sinclair Sellers or to which any of Sellers or
any of the Sinclair Sellers contribute or are required to contribute (a
"Welfare Plan");
(ii) "Multiemployer pension plan," as defined in
Section 3(37) of ERISA, that is maintained or administered by any of
Sellers or any of the Sinclair Sellers or to
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which any of Sellers or any of the Sinclair Sellers contribute or are
required to contribute (a "Multiemployer Plan" and, together with the
Welfare Plans, the "Benefit Plans");
(iii) "Employee pension benefit plan," as defined in
Section 3(2) of ERISA (other than a Multiemployer Plan), to which any
of Sellers or any of the Sinclair Sellers contribute or are required to
contribute (a "Pension Plan");
(iv) Employee plan that is maintained in connection
with any trust described in Section 501(c)(9) of the Internal Revenue
Code of 1986, as amended; and
(v) Employment, severance, or other similar contract,
arrangement, or policy and each plan or arrangement (written or oral)
providing for insurance coverage (including any self-insured
arrangements), workers' compensation, disability benefits, supplemental
unemployment benefits, vacation benefits, or retirement benefits or
arrangement for deferred compensation, profit-sharing, bonuses, stock
options, stock appreciation rights, stock purchases, or other forms of
incentive compensation or post-retirement insurance, compensation, or
benefits that (A) is not a Welfare Plan, Pension Plan, or Multiemployer
Plan, and (B) is entered into, maintained, contributed to, or required
to be contributed to by any Seller or Sinclair Seller or under which
any Seller or Sinclair Seller has any liability relating to Employees,
(collectively, "Benefit Arrangements").
(b) Pension Plans. None of Sellers and the Sinclair Sellers
sponsor, maintain, or contribute to any Pension Plan other than the Entercom
401(k) Savings and Retirement Plan in the case of Sellers, and the Sinclair
Broadcast Group 401(k) Profit Sharing Plan in the case of the Sinclair Sellers.
Each Pension Plan complies currently and has been maintained in substantial
compliance with its terms and, both as to form and in operation, with all
material requirements prescribed by any and all material statutes, orders, rules
and regulations that are applicable to such plans, including ERISA and the Code,
except where the failure to do so will not have a Material Adverse Effect.
(c) Welfare Plans. Each Welfare Plan complies currently and has
been maintained in substantial compliance with its terms and, both as to form
and in operation, with all material requirements prescribed by any and all
material statutes, orders, rules and regulations that are applicable to such
plans, including ERISA and the Code, except where the failure to do so will not
have a Material Adverse Effect. None of Sellers and the Sinclair Sellers
sponsor, maintain, or contribute to any Welfare Plan that provides health or
death benefits to former employees of the Stations other than as required by
Section 4980B of the Code or other applicable laws.
(d) Benefit Arrangements. Each Benefit Arrangement has been
maintained in substantial compliance with its terms and with the material
requirements prescribed by all statutes, orders, rules and regulations that are
applicable to such Benefit Arrangement, except where the failure to do so will
not have a Material Adverse Effect. Except for those employment agreements
listed on Schedule 3.7, none of Sellers and the Sinclair Sellers have any
written contract prohibiting the termination of any Employee.
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(e) Multiemployer Plans. Except as disclosed in Schedule 3.14,
none of Sellers and the Sinclair Sellers have at any time been a participant in
any Multiemployer Plan relating to or affecting any of the Employees.
(f) Delivery of Copies of Relevant Documents and Other
Information. Sellers have delivered or made available to Buyer true and complete
copies of each of the following documents:
(i) Each Welfare Plan and Pension Plan (and, if
applicable, related trust agreements) and all amendments thereto, and
written descriptions thereof that have been distributed to Employees,
all annuity contracts or other funding instruments; and
(ii) Each Benefit Arrangement and written
descriptions thereof that have been distributed to Employees and
complete descriptions of any Benefit Arrangement that is not in
writing.
(g) Labor Relations. Except as set forth in Schedule 3.14(g), no
Seller or any Sinclair Seller is a party to or subject to any collective
bargaining agreement or written or oral employment agreement with any Employee.
With respect to the Employees, Sellers and the Sinclair Sellers have complied in
all material respects with all laws, rules and regulations relating to the
employment of labor, including those related to wages, hours, collective
bargaining, occupational safety, discrimination, and the payment of social
security and other payroll related taxes, and have not received any notice
alleging that any Seller or any Sinclair Seller has failed to comply materially
with any such laws, rules, or regulations. Except as set forth on Schedule
3.14(g), no proceedings are pending or, to the Knowledge of Sellers, threatened,
between any Seller or any Sinclair seller and any Employee (singly or
collectively) that relate to the Stations. Except as set forth on Schedule
3.14(g), no labor union or other collective bargaining unit represents or claims
to represent any of the Employees. Except as set forth in Schedule 3.14, to the
Knowledge of Sellers, there is no union campaign being conducted to solicit
cards from any Employees to authorize a union to represent any Employee of any
Seller or any Sinclair Seller or to request a National Labor Relations Board
certification election with respect to any Employees.
3.15 Claims and Legal Actions. Except as disclosed on Schedule 3.15 and
except for any FCC rulemaking proceedings generally affecting the radio
broadcasting industry and not particular to any of Sellers (in the case of
KCMO-AM and KCMO-FM), and the Sinclair Sellers (in the case of KCFX-FM), there
is no claim, legal action, counterclaim, suit, arbitration, or other legal,
administrative, or tax proceeding, nor any order, decree, or judgment, in
progress or pending, or to the Knowledge of Sellers threatened, against or
relating to the Assets, or the business or operations of any of the Stations,
nor does any Seller know of any basis for the same.
3.16 Environmental Compliance.
(a) Except as disclosed on Schedule 3.16, (x) none of the Owned
Real Property and none of the Tangible Personal Property and, to Sellers'
Knowledge (provided such knowledge qualifier shall not apply to the extent
caused by the Tangible Personal Property), none of the Leased Real Property
contains (i) any asbestos, polychlorinated biphenyls or any PCB
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contaminated oil; (ii) any Contaminants; or (iii) any underground storage tanks;
(y) no underground storage tank disclosed on Schedule 3.16 used in the operation
of KCFX-FM has leaked and has not been remediated or in the case of any
underground storage tank used in connection with the operation of KCMO-AM and/or
KCMO-FM has not been remediated in substantial compliance with applicable
Environmental Laws, and no underground storage tank listed on Schedule 3.16
leaks and any such tank is in substantial compliance with all applicable
Environmental Laws; and (z) all of the Owned Real Property and, to Sellers'
Knowledge, all of the Leased Real Property is in substantial compliance with all
applicable Environmental Laws.
(b) Sellers (with respect to property used in the operations of
KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to property used in
the operations of KCFX-FM) have obtained all material permits, licenses and
other authorizations that are required under all Environmental Laws.
3.17 Compliance with Laws. Sellers have complied in all material
respects with the KCMO Licenses, and the Sinclair Sellers have complied in all
material respects with the KCFX Licenses, and the Sellers (with respect to the
business and operations of KCMO-AM and KCMO-FM) and the Sinclair Sellers (with
respect to the business and operations of KCFX-FM) have complied in all material
respects with all material federal, state and local laws, rules, regulations and
ordinances applicable or relating to the ownership and operation of the Assets
and Stations. Neither Sellers nor the Sinclair Sellers have received any notice
of any material violation of federal, state and local laws, regulations and
ordinances applicable or relating to the ownership or operation of the Assets
and the Stations nor, to Sellers' Knowledge, have Sellers or the Sinclair
Sellers received any notice of any immaterial violation of federal, state and
local laws, regulations, and ordinances applicable or relating to the ownership
or operation of the Assets or the Stations.
3.18 Conduct of Business in Ordinary Course. Since the December 31,
1999 balance sheet (in the case of KCMO-AM and KCMO-FM) and the July 31, 1999
balance sheet (in the case of KCFX-FM) and through the date hereof, the business
and operations of the Stations has been conducted in the ordinary course and,
except as disclosed in Schedule 3.18, there has not been:
(a) any material increase in compensation payable or to become
payable to any of its employees other than those in the normal and usual course
of business or in connection with any change in any Employee's responsibilities,
or any bonus payment made or promised to any of its Employees, or any material
change in personnel policies, employee benefits, or other compensation
arrangements affecting its employees;
(b) any sale, assignment, lease, or other transfer of assets
other than in the normal and usual course of business with suitable replacements
being obtained therefor;
(c) any canceled debts owed to or claims held by Sellers (with
respect to the business and operations of KCMO-AM and KCMO-FM), or by the
Sinclair Sellers (with respect to the business and operations of KCFX-FM),
except in the normal and usual course of business;
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(d) any changes in Sellers' accounting practices (with respect to
the business and operations of KCMO-AM and KCMO-FM) or any changes in Sinclair
Sellers' accounting practices (with respect to the business and operations of
KCFX-FM);
(e) any material write-down of the value of any Assets or any
material write-off as uncollectable of any Accounts Receivable; or
(f) transfer or grant of any right under, or any settlement
regarding the breach or infringement of, any license, patent, copyright,
trademark, trade name, franchise, or similar right, or modification of any
existing right, in each case used in the operation of the stations.
3.19 Transactions with Affiliates. Except as disclosed in Schedule 3.19
or with respect to the Excluded Real Property Interests and the Excluded
Tangible Personal Property, no Seller or Sinclair Seller has been involved in
any business arrangement or relationship with any Affiliate, and no Affiliate of
any Seller or any Sinclair Seller owns any property or right, tangible or
intangible, that is material to the operations of the business of the Stations.
3.20 Broker. Except as disclosed on Schedule 3.20, no Seller nor any
Person acting on their behalf has incurred any liability for any finders' or
brokers' fees or commissions in connection with the transactions contemplated by
this Agreement, and Buyer shall have no liability for any finders' or brokers'
fees or commissions in connection with the transactions contemplated by this
Agreement or for any broker listed on Schedule 3.20.
3.21 Insolvency Proceedings. None of the Sellers or the Sinclair
Sellers nor any of the Assets are the subject of any pending or threatened
insolvency proceedings of any character, including, without limitation,
bankruptcy, receivership, reorganization, composition or arrangement with
creditors, voluntary or involuntary. No Seller and no Sinclair Seller has made
an assignment for the benefit of creditors or taken any action in contemplation
of or which would constitute a valid basis for the institution of any such
insolvency proceedings. No Seller and no Sinclair Seller is insolvent nor will
it become insolvent as a result of entering into or performing this Agreement.
SECTION 4.
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REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer represents and warrants to Sellers as of the date hereof
and as of the Closing Date (except for representations and warranties that speak
as of a specific date or time, in which case, such representations and
warranties shall be true and complete as of such date and time) as follows:
4.1 Organization, Standing and Authority. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Pennsylvania
and has the requisite corporate power and authority to execute, deliver and
perform this Agreement and the documents contemplated hereby according to their
respective terms and to own the Assets. Prior to the Closing Date, Buyer will be
qualified to do business in each of the States in which any of the Stations are
located.
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4.2 Authorization and Binding Obligation. The execution, delivery and
performance of this Agreement by Buyer have been duly authorized by all
necessary action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms except as the
enforceability of this Agreement may be affected by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and by judicial discretion in
the enforcement of equitable remedies.
4.3 Absence of Conflicting Agreements and Required Consents. Subject to
the receipt of the Consents, the execution, delivery and performance by Buyer of
this Agreement and the documents contemplated hereby (with or without the giving
of notice, the lapse of time, or both): (a) do not require the consent of any
third party; (b) will not conflict with the Articles of Incorporation or Bylaws
of Buyer; (c) will not conflict with, result in a breach of, or constitute a
default under, any applicable law, judgment, order, ordinance, injunction,
decree, rule, regulation, or ruling of any court or governmental
instrumentality; and (d) will not conflict with, constitute grounds for
termination of, result in a breach of, constitute a default under, or accelerate
or permit the acceleration of any performance required by the terms of, any
agreement, instrument, license or permit to which Buyer is a party or by which
Buyer may be bound. Except for the FCC Consent provided for in Section 6.1. the
filings required by Hart-Scott-Rodino provided for in Section 6.2 and the other
Consents described in Schedule 4.3, no consent, approval, permit, or
authorization of, or declaration to, or filing with any governmental or
regulatory authority or any other third party is required (a) to consummate this
Agreement and the transactions contemplated hereby, or (b) to permit Buyer to
acquire the Assets from Sellers and the Sinclair Sellers or to assume certain
liabilities and obligations of Sellers and the Sinclair Sellers in accordance
with Section 2.5.
4.4 Brokers. Neither Buyer nor any person or entity acting on its
behalf has incurred any liability for any finders' or brokers' fees or
commissions in connection with the transactions contemplated by this Agreement.
4.5 Availability of Funds. Buyer will have available on the Closing
Date sufficient funds to enable it to consummate the transactions contemplated
hereby.
4.6 Qualifications of Buyer. Except as disclosed in Schedule 4.6, Buyer
is, and pending Closing will remain legally, financially and otherwise qualified
under the Communications Act, Hart-Scott-Rodino and all rules, regulations and
policies of the FCC, the Department of Justice, the Federal Trade Commission
(the "FTC") and any other governmental agency, to acquire and operate the
Stations. Except as disclosed in Schedule 4.6, there are no facts or proceedings
which would reasonably be expected to disqualify Buyer under the Communications
Act or Hart-Scott-Rodino or otherwise from acquiring or operating the Stations
or would cause the FCC not to approve the assignment of the FCC Licenses to
Buyer or the Department of Justice and the FTC not to allow the waiting period
under Hart-Scott-Rodino to terminate within 30 days of the filing provided for
in Section 6.2. Except as disclosed in Schedule 4.6, Buyer has no knowledge of
any fact or circumstance relating to Buyer or any of Buyer's Affiliates that
would reasonably be expected to (a) cause the filing of any objection to the
assignment of the FCC Licenses to Buyer, (b) lead to a delay in the processing
by the FCC of the applications for such assignment or (c) lead to a delay in the
termination of the waiting period required by Hart-Scott-Rodino.
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Except as disclosed in Schedule 4.6, no waiver of any FCC rule or policy is
necessary to be obtained for the grant of the applications for the assignment of
the FCC Licenses to Buyer, nor will processing pursuant to any exception or rule
of general applicability be requested or required in connection with the
consummation of the transactions herein.
4.7 WARN Act. Buyer is not planning or contemplating, and has not made
or taken any decisions or actions concerning the employees of the Stations after
the Closing Date that would require the service of notice under the Worker
Adjustment and Retraining Notification Act of 1988, as amended, or any similar
state law.
4.8 Buyer's Defined Contribution Plan. Schedule 4.8 completely and
accurately lists all Buyer's defined contribution plan or plans (the "Buyer's
Plan") intended to be qualified under Section 401(a) and 401(k) of the Code in
which the Transferred Employees will be eligible to participate. Buyer has a
currently applicable determination letter from the Internal Revenue Service with
respect to each of the Buyer's Plans other than Buyer's Employee Stock Ownership
Plan as to which Buyer will obtain an applicable determination letter from the
Internal Revenue Service as soon as reasonably possible.
SECTION 5.
----------
OPERATION OF THE STATIONS PRIOR TO CLOSING
------------------------------------------
Sellers covenant and agree that between the date hereof and the
Closing Date, Sellers (with respect to the operations of KCMO-AM and KCMO-FM),
and the Sinclair Sellers (with respect to the operations of KCFX-FM), will
operate the Stations in the ordinary course in accordance with such sellers'
past practices (except where such conduct would conflict with the following
covenants or with other obligations of Sellers under this Agreement or the
Sinclair Sellers under the Entercom/Sinclair Contract, as the case may be), and,
except as contemplated by this Agreement or with the prior written consent of
Buyer (such consent not to be unreasonably withheld), Sellers (with respect to
KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to KCFX-FM) will act
in accordance with the following insofar as such actions relate to the Stations:
5.1 Contracts. Sellers (with respect to any Contract pertaining to the
business and operations of KCMO-AM and KCMO-FM) and the Sinclair Sellers (with
respect to any Contract pertaining to the business and operations of KCFX-FM)
will not renew, extend, amend or terminate, or waive any material right under,
any Material Contract, or enter into any contract or commitment or incur any
obligation (including obligations relating to the borrowing of money or the
guaranteeing of indebtedness and obligations arising from the amendment of any
existing Contract, regardless of whether such Contract is a Material Contract)
that will be assumed by or be otherwise binding on Buyer after Closing, except
for (a) cash time sales agreements and production agreements made in the
ordinary course of business consistent with such seller's past practices, (b)
the renewal or extension of any existing Contract (other than network
affiliation agreements) on its existing terms in the ordinary course of
business, and (c) other contracts (other than network affiliation agreements, or
time brokerage or local marketing arrangements) entered into in the ordinary
course of business consistent with such sellers' past practices that do not
involve consideration, in the aggregate, in excess of Fifty Thousand Dollars
($50,000) measured at Closing. Prior to the Closing Date, Sellers shall deliver
to Buyer a list of all material
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Contracts entered into between the date of this Agreement and the Closing Date
and shall make available to Buyer copies of such Contracts.
5.2 Compensation. Sellers (with respect to employees employed at
KCMO-AM and KCMO-FM), and the Sinclair Sellers (with respect to employees
employed at KCFX-FM), shall not materially increase the compensation, bonuses,
or other benefits payable or to be payable to any such person employed in
connection with the conduct of the business or operations of the respective
Stations, except in accordance with past practices, as required by an employment
agreement or consulting agreement or in connection and commensurate with the
change in responsibility of any such employee.
5.3 Encumbrances. Sellers (with respect to the assets used in the
operations of KCMO-AM and KCMO-FM), and the Sinclair Sellers (with respect to
the assets used in the operations of KCFX-FM), will not create, assume, or
permit to exist any mortgage, pledge, lien, or other charge or encumbrance
affecting any of the Assets, except for (a) liens disclosed in Schedule 5.3, (b)
liens that will be removed prior to the Closing Date, and (c) Permitted
Encumbrances.
5.4 Dispositions. Sellers (with respect to the assets used in the
operations of KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to the
assets used in the operations of KCFX-FM) will not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets except (a) Assets that are no
longer used in the operations of the Stations, (b) Assets that are replaced with
Assets of equivalent kind and value that are acquired after the date of this
Agreement, and (c) any intercompany accounts receivable.
5.5 Access to Information. Upon prior reasonable notice by Buyer,
Sellers will give, and will use their reasonable best efforts to cause the
Sinclair Sellers to give, to Buyer and its investors, lenders, counsel,
accountants, engineers and other authorized representatives, reasonable access
to the Stations and all books, records and documents of Sellers (in the case of
KCMO-AM and KCMO-FM) and the Sinclair Sellers (in the case of KCFX-FM) which are
material to the business and operation of the Stations and will furnish or cause
to be furnished to Buyer and its authorized representatives all information that
they reasonably request (including any financial reports and operations reports
produced with respect to the Stations).
5.6 Insurance. Sellers or their Affiliates shall maintain in full force
and effect policies of insurance of the same type, character and coverage as the
policies currently carried with respect to the business, operations and assets
of KCMO-AM and KCMO-FM. The Sinclair Sellers or their Affiliates shall maintain
in full force and effect policies of insurance of the same type, character and
coverage as the policies currently carried with respect to the business,
operations and assets of KCFX-FM.
5.7 Licenses. The Sellers (with regard to the KCMO Licenses listed on
Schedule 3.4) and the Sinclair Sellers (with regard to the KCFX Licenses listed
on Schedule 3.4) shall not cause or permit, by any act or failure to act, any
such licenses to expire or to be revoked, suspended or modified, or take any
action that could reasonably be expected to cause the FCC or any other
governmental authority to institute proceedings for the suspension, revocation
or material adverse modification of any of the Licenses. Sellers (with respect
to applications concerning
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KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to applications
concerning of KCFX-FM) shall prosecute with due diligence any applications to
any governmental authority necessary for the operation of the Stations.
5.8 Obligations. Sellers (with respect to obligations arising out of
the business and operations of KCMO-AM and KCMO-FM) and the Sinclair Sellers
(with respect to obligations arising out of the business and operations of
KCFX-FM) shall pay all their obligations insofar as they relate to the Stations
as they become due, consistent with past practices.
5.9 No Inconsistent Action. Sellers shall not take any action that is
inconsistent with their obligations under this Agreement in any material respect
or that could reasonably be expected to hinder or delay the consummation of the
transactions contemplated by this Agreement. Neither Sellers nor any of their
respective representatives or agents shall, directly or indirectly, solicit,
initiate, or participate in any way in discussions or negotiations with, or
provide any confidential information to, any Person (other than Buyer or any
Affiliate or associate of Buyer, or the Sinclair Sellers or any affiliate or
associate of the Sinclair Sellers and their respective representatives and
agents) concerning any possible disposition of the Stations, the sale of any
material assets of the Stations, or any similar transaction.
5.10 Maintenance of Assets. Sellers (with respect to those of the
Assets used in the operations of KCMO-AM and KCMO-FM) and the Sinclair Sellers
(with respect to those of the Assets used in the operations of KCFX-FM) shall
maintain the Assets in good condition (ordinary wear, tear and casualty
excepted), consistent with their overall condition on the date of this
Agreement, and use, operate and maintain the Assets in a reasonable manner.
Sellers (with respect to KCMO-AM and KCMO-FM) and the Sinclair Sellers (with
respect to KCFX-FM) shall maintain inventories of spare parts and expendable
supplies at levels consistent with past practices. If any insured or indemnified
loss, damage, impairment, confiscation, or condemnation of or to any of the
Assets occurs, Sellers (with respect to the assets used in the operations of
KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to the assets used
in the operations of KCFX-FM) shall repair, replace, or restore the Assets to
their prior condition as represented in this Agreement as soon thereafter as
possible, and Sellers (with respect to the assets used in the operations of
KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to the assets used
in the operations of KCFX-FM) shall use the proceeds of any claim under any
property damage insurance policy or other recovery solely to repair, replace, or
restore any of the Assets that are lost, damaged, impaired, or destroyed.
5.11 Consents.
(a) Subject to Section 6.5 hereof, Sellers shall use their
reasonable efforts to obtain all Consents described in Section 3.3, without any
adverse change in the terms or conditions of any Assumed Contract or License.
Sellers shall promptly advise Buyer of any difficulties experienced in obtaining
any of the Consents and of any conditions proposed, considered or requested for
any of the Consents.
(b) Anything in this Agreement to the contrary notwithstanding,
this Agreement shall not constitute an agreement to assign or transfer any
Contract or any claim, right or benefit arising thereunder or resulting
therefrom, if an attempted assignment or transfer thereof, without the consent
of a third party thereto would constitute a breach thereof or in any way
adversely
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affect the rights of the Buyer thereunder. If such consent (a "Deferred
Consent") is not obtained, or if an attempted assignment or transfer thereof
would be ineffective or would affect the rights thereunder so that the Buyer
would not receive all such rights, then (i) the Seller and the Buyer will
cooperate, in all reasonable respects, to obtain such Deferred Consents as soon
as practicable; provided that Sellers shall have no obligation (y) to expend
funds to obtain any Deferred Consent, other than ministerial processing fees,
and Sellers' out-of-pocket expenses to its attorney or other agents incurred in
connection with obtaining any Deferred Consent, or (z) to agree to any adverse
change in any License or Assumed Contract in order to obtain a Deferred Consent,
and (ii) until such Deferred Consent is obtained, the Seller and the Buyer will
cooperate in all reasonable respects, to provide to the Buyer the benefits under
the Contract, to which such Deferred Consent relates (with the Buyer responsible
for all the liabilities and obligations thereunder). In particular, in the event
that any such Deferred Consent is not obtained prior to Closing, then the Buyer
and the Seller shall enter into such arrangements (including subleasing or
subcontracting if permitted) to provide to the parties the economic and
operational equivalent of obtaining such Deferred Consent and assigning or
transferring such Contract, including enforcement for the benefit of the Buyer
of all claims or rights arising thereunder, and the performance by the Buyer of
the obligations thereunder on a prompt and punctual basis.
5.12 Books and Records. Sellers (with respect to the books and records
of KCMO-AM and KCMO-FM) and the Sinclair Sellers (with respect to the books and
records of KCFX-FM) shall maintain such books and records in accordance with
past practices.
5.13 Notification. Sellers shall promptly notify Buyer in writing of
any material developments with respect to the business or operations of the
Stations and of any material change in any of the information contained in the
representations and warranties contained in Section 3 of this Agreement.
5.14 Financial Information. Sellers shall furnish Buyer with sales
pacing reports for the Stations on a weekly basis and shall furnish to Buyer
within thirty (30) days after the end of each month ending between the date of
this Agreement and the Closing Date a statement of income and expense for the
month just ended and such other financial information (including information on
payables and receivables) as Buyer may reasonably request. All financial
information delivered by Sellers to Buyer pursuant to this Section 5.14 shall be
prepared from the books and records of Sellers (with respect to the business and
operations of KCMO-AM and KCMO-FM) or the Sinclair Sellers (with respect to the
business and operations of KCFX-FM) in accordance with generally accepted
accounting principles, consistently applied, shall accurately reflect the books,
records and accounts of the Stations, shall be complete and correct in all
material respects, and shall present fairly the financial condition of the
Stations as at their respective dates and the results of operations for the
periods then ended.
5.15 Compliance with Laws. Sellers (with respect to the business and
operations of KCMO-AM and KCMO-FM) shall comply in all material respects with
all laws, rules and regulations and the Sinclair Sellers (with respect to the
business and operations of KCFX-FM) shall comply in all material respects with
all material laws, rules and regulations.
5.16 Programming. Sellers (with respect to the programming of KCMO-AM
and KCMO-FM) and the Sinclair Sellers (with respect to the programming of
KCFX-FM) shall not make any
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material changes in the Stations' formats, except such changes as in the good
faith judgment of such sellers are required by the public interest.
5.17 Preservation of Business. Sellers (with respect to KCMO-AM and
KCMO-FM) and the Sinclair Sellers (with respect to KCFX-FM) shall use
commercially reasonable efforts consistent with past practices to preserve the
business and organization of the Stations and to keep available to the Stations
its present employees and to preserve the audience of the Stations and the
Stations' present relationships with suppliers, advertisers, and others having
business relations with it.
5.18 Normal Operations. Subject to the terms and conditions of this
Agreement (including, without limitation, Section 5.1), prior to the Closing,
Sellers (with respect to KCMO-AM and KCMO-FM) and the Sinclair Sellers (with
respect to KCFX-FM) shall carry on the business and activities of the Stations,
including, without limitation, promotional activities, the sale of advertising
time, entering into other contracts and agreements, purchasing and scheduling
programming, performing research, and operating in all material respects in
accordance with existing budgets and past practice and will not enter into trade
and barter obligations except in the ordinary course of business consistent with
past practice.
SECTION 6.
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SPECIAL COVENANTS AND AGREEMENTS
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6.1 FCC Consent.
(a) The exchange and transfer of the Assets as contemplated by
this Agreement is subject to the prior consent and approval of the FCC.
(b) Kansas City License and Buyer shall prepare and within seven
(7) business days after the date of this Agreement shall file with the FCC an
appropriate application for FCC Consent. The parties shall thereafter prosecute
the application with all reasonable diligence and otherwise use their respective
best efforts to obtain a grant of the application as expeditiously as
practicable. Each party agrees to comply with any condition imposed on it by the
FCC Consent, except that no party shall be required to comply with a condition
if (i) the condition was imposed on it as the result of a circumstance the
existence of which does not constitute a breach by that party of any of its
representations, warranties or covenants hereunder, and (ii) compliance with the
condition would have a material adverse effect upon it. Buyer and Kansas City
License shall oppose any petitions to deny or other objections filed with
respect to the application for the FCC Consent and any requests for
reconsideration or judicial review of the FCC Consent.
(c) If the Closing shall not have occurred for any reason within
the original effective period of the FCC Consent, and neither party shall have
terminated this Agreement under Section 9, the parties shall jointly request an
extension of the effective period of the FCC Consent, as the case may be. No
extension of the effective period of the FCC Consent shall limit the exercise by
either party of its right to terminate the Agreement under Section 9.
6.2 Hart-Scott-Rodino. As soon as reasonably possible, but in any event
no later than ten (10) business days following the execution of this Agreement,
Sellers and Buyer shall complete
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any filing that may be required pursuant to Hart-Scott-Rodino (each an "HSR
Filing"). Sellers and Buyer shall diligently take, or fully cooperate in the
taking of, all necessary and proper steps, and provide any additional
information reasonably requested in order to comply with, the requirements of
Hart-Scott-Rodino.
6.3 Risk of Loss. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the Assets of Sellers for any cause
whatsoever shall be borne by Sellers at all times prior to the Closing. In the
event of loss or damage prior to the Closing Date, Sellers shall use
commercially reasonable efforts to fix, restore, or replace such loss, damage,
impairment, confiscation, or condemnation to its former operational condition.
If Sellers have adequate replacement cost insurance, Buyer may elect to have
Sellers assign such insurance proceeds to Buyer, in which case, Buyer shall
proceed with the Closing, and receive at the Closing the insurance proceeds or
an assignment of the right to receive such insurance proceeds, as applicable, to
which Sellers otherwise would be entitled, whereupon Sellers shall have no
further liability to Buyer for such loss or damage.
6.4 Confidentiality. Except as necessary for the consummation of the
transaction contemplated by this Agreement, including Buyer's obtaining of
financing related hereto, and except as and to the extent required by law, each
party will keep confidential any information obtained from the other party in
connection with the transactions specifically contemplated by this Agreement. If
this Agreement is terminated, each party will return to the other party all
information obtained by the such party from the other party in connection with
the transactions contemplated by this Agreement.
6.5 Cooperation. Buyer and Sellers shall reasonably cooperate with each
other and their respective counsel and accountants in connection with any
actions required to be taken as part of their respective obligations under this
Agreement, and in connection with any litigation after the Closing Date which
relate to the Stations for periods prior to the applicable Effective Time, Buyer
and Sellers shall execute such other documents as may be reasonably necessary
and desirable to the implementation and consummation of this Agreement, and
otherwise use their commercially reasonable efforts to consummate the
transaction contemplated hereby and to fulfill their obligations under this
Agreement. Notwithstanding the foregoing, Sellers shall have no obligation (a)
to expend funds to obtain any of the Consents, other than ministerial processing
fees, and Sellers' out-of-pocket expenses to its attorney or other agents
incurred in connection with obtaining such consents, or (b) to agree to any
adverse change in any License or Assumed Contract in order to obtain a Consent
required with respect thereto.
6.6 Control of the Stations. Prior to the Closing, Buyer shall not,
directly or indirectly, control, supervise or direct, or attempt to control,
supervise or direct, the operations of the Stations; those operations, including
complete control and supervision of all of each Stations' programs, employees
and policies, shall be the sole responsibility of Seller.
6.7 Accounts Receivable.
(a) As soon as practicable after the Closing Date, Sellers shall
deliver or cause to be delivered to Buyer a complete and detailed list of all
the Accounts Receivable for KCFX-FM (the "KCFX-FM Accounts Receivable"). During
the period beginning on the Closing Date and
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ending on the last day of the sixth full calendar month beginning after the
Closing Date (the "Collection Period"), Buyer shall use commercially reasonable
efforts, as Sellers' agent, to collect the KCFX-FM Accounts Receivable in the
usual and ordinary course of business, using the KCFX-FM credit, sales and other
appropriate personnel in accordance with customary practices, which may include
referral to a collection agency. Notwithstanding the foregoing, Buyer shall not
be required to institute legal proceedings on Sellers' behalf to enforce the
collection of any for KCFX-FM Accounts Receivable. Buyer shall not adjust any
for KCFX-FM Accounts Receivable or grant credit without Sellers' written
consent, and Buyer shall not pledge, secure or otherwise encumber such for
KCFX-FM Accounts Receivable or the proceeds therefrom. On or before the twelfth
business day after the end of each calendar month during the Collection Period,
Buyer shall remit to Sellers collections received by Buyer with respect to the
KCFX-FM Accounts Receivable, together with a report of all amounts collected
with respect to the for KCFX-FM Accounts Receivable during, as the case may be,
the period from the Closing or the beginning of such month through the end of
such month, less any sales commissions or collection costs paid by Buyer during
the respective periods with respect to those for KCFX-FM Accounts Receivable.
(b) Any payments received by Buyer during the Collection Period
from any Person that is an account debtor with respect to any account disclosed
in the list of for KCFX-FM Accounts Receivable delivered by Sellers to Buyer
shall be applied first to the invoice designated by the account debtor and, if
none, such payment shall be applied to the oldest account which is not disputed.
Buyer shall incur no liability to Sellers for any uncollected account, other
than as a result of Buyer's breach of its obligations under this Section 6.7.
Prior to the end of the third full calendar month after the Closing, neither
Sellers nor any agent of Sellers shall make any direct solicitation of the
account debtors for payment. After the end of the third full calendar month
after the Closing, Sellers shall have the right, at their expense, to assist and
participate with Buyer in the collection of unpaid for KCFX-FM Accounts
Receivable, provided, however, Seller's collection efforts shall be commercially
reasonable and consistent with its past practices.
(c) At the end of the Collection Period, Buyer shall return to
Sellers all files concerning the collection or attempts to collect the for
KCFX-FM Accounts Receivable, and Buyer's responsibility for the collection of
the for KCFX-FM Accounts Receivable shall cease.
(d) The parties also acknowledge that Sellers intend to collect
all of the Accounts Receivable for KCMO-AM and KCMO-FM after the Closing Date;
provided however, that if Accounts Receivables for KCMO-AM or KCMO-FM are
received by Buyer, Buyer shall promptly remit such Accounts Receivables to
Sellers no less often than every 30 days after the Closing Date.
6.8 Allocation of Purchase Price. Buyer and Sellers agree that the fair
market value of the Assets of the Stations will be appraised by the appraisal
firm of BIA, whose expenses will be borne one-half (1/2) by Buyer and one-half
(1/2) by Sellers. Buyer and Sellers agree that the fair market value of the
Assets of the Stations will be the value found in the appraisal of such Assets
by BIA. Buyer and Sellers shall collaborate in good faith in the preparation of
mutually satisfactory Form(s) 8594 (and Form 8824 to the extent applicable)
reflecting the Fair Market Value of the Assets as found by BIA and such other
information as is required by the form.
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Buyer and Sellers shall each file with their respective federal income tax
return for the tax year in which the Closing occurs, IRS Form(s) 8594 (and Form
8824 to the extent applicable) containing the information agreed upon by the
parties pursuant to the immediately preceding sentence. Buyer agrees to report
the purchase of the Assets of the Stations, and Sellers agree to report the sale
of such assets for income tax purposes on their respective income tax returns in
a manner consistent with the information agreed upon by the parties pursuant to
this section and contained in the IRS Form(s) 8594 (and Form 8824 to the extent
applicable).
6.9 Access to Books and Records. To the extent reasonably requested by
Buyer, Sellers shall provide Buyer access and the right to copy from and after
the Closing Date any books and records relating to the Assets within their
possession (or in the case of matters pertaining to KCFX-FM, available to them
from the Sinclair Sellers) but not included in the Assets. To the extent
reasonably requested by Sellers, Buyer shall provide Sellers access and the
right to copy from and after the Closing Date any books and records relating to
the Assets that are included in the Assets. Buyer and Sellers shall each retain
any such books and records, for a period of three years (or such longer period
as may be required by law or good business practice) following the Final Closing
Date.
6.10 Employee Matters.
(a) Upon consummation of the Closing, Buyer shall offer
employment to each of the Employees of the Stations listed on Schedule 3.14
(including those on leave of absence, whether short-term, long-term, family,
maternity, paid, unpaid or other and those hired after the date hereof in the
ordinary course of business) at a comparable salary, position and place of
employment as held by each such Employee immediately prior to the Closing Date
(such Employees who are given such offers of employment are referred to herein
as the "Transferred Employees")
(b) Except as provided otherwise in this Section 6.10, Sellers
(in the case of Employees of KCMO-AM and KCMO-FM) and the Sinclair Sellers (in
the case of Employees of KCFX-FM) shall pay, discharge and be responsible for
(a) all salary and wages arising out of or relating to the employment of the
Employees prior to the Closing Date and (b) any employee benefits arising under
the Benefit Plans or Benefit Arrangements of Sellers and their Affiliates and
the Sinclair Sellers and their Affiliates during the period prior to the Closing
Date. From and after the Closing Date, Buyer shall pay, discharge and be
responsible for all salary, wages and benefits arising out of or relating to the
employment of the Transferred Employees by Buyer on and after the Closing Date.
Buyer shall be responsible for all severance liabilities, and all COBRA
liabilities for any Transferred Employees of the Stations terminated on or after
the Closing Date, including, without limitation, any related to any deemed
termination by any of the Sellers or any of the Sinclair Sellers of the
Transferred Employees as a result of the consummation of the transaction
contemplated hereby and any required pursuant to those retention/severance
agreements listed on Schedule 6.10 hereto.
(c) Buyer shall cause all Transferred Employees as of the Closing
Date to be eligible to participate in its "employee welfare benefit plans" and
"employee pension benefit plans" (as defined in Section 3(1) and 3(2) of ERISA,
respectively) of Buyer in which similarly situated employees of Buyer are
generally eligible to participate; provided, however, that all
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Transferred Employees and their spouses and dependents shall be eligible for
coverage immediately after the Closing Date (and shall not be excluded from
coverage on account of any pre-existing condition) to the extent provided under
such plans with respect to Transferred Employees.
(d) For purposes of any length of service requirements, waiting
period, vesting periods or different benefits based on length of service in any
such plan for which a Transferred Employee may be eligible after the Closing,
Buyer shall ensure that, to the extent permitted by law, service by such
Transferred Employee with any of Sellers or any of the Sinclair Sellers, any
Affiliate of any such sellers or any prior owner of the Stations shall be deemed
to have been service with the Buyer. In addition, Buyer shall ensure that each
Transferred Employee receives credit under any welfare benefit plan of Buyer for
any deductibles or co-payments paid by such Transferred Employee and his or her
dependents for the current plan year under a plan maintained by Sellers or the
Sinclair Sellers or any Affiliate of such sellers to the extent allowable under
any such plan. Buyer shall grant credit to each Transferred Employee for all
sick leave in accordance with the policies of Buyer applicable generally to its
employees after giving effect to service for Sellers and the Sinclair Sellers,
any Affiliate of such sellers or any prior owner of the Stations, as service for
Buyer. To the extent taken into account in determining prorations pursuant to
Section 2.3 hereof, Buyer shall assume and discharge Sellers' and the Sinclair
Sellers' liabilities for the payment of all unused vacation leave accrued by
Transferred Employees as of the Closing Date. To the extent any claim with
respect to such accrued vacation leave is lodged against any Sellers or any of
Sinclair Sellers with respect to any Transferred Employee for which Buyer has
received a proration credit, Buyer shall, to the extent of such credit,
indemnify, defend and hold harmless such sellers from and against any and all
losses, directly or indirectly, as a result of, or based upon or arising from
the same.
(e) As soon as practicable following the Closing Date, Buyer
shall make available to the Transferred Employees Buyer's 401(k) Plan. To the
extent requested by a Transferred Employee, Sellers (with respect to any
Transferred Employees employed at KCMO-AM and KCMO-FM) shall cause to be
transferred to Buyer's 401(k) Plan, and to use its reasonable best efforts to
cause the Sinclair Sellers (with respect to any Transferred Employees employed
at KCFX-FM) to transfer to Buyer's 401(k) Plan in cash all of the individual
account balances of Transferred Employees under such sellers' Plans, including
any outstanding plan participant loan receivables allocated to such accounts.
(f) Buyer acknowledges and agrees that Buyer's obligations
pursuant to this Section 6.10 are in addition to, and not in limitation of,
Buyer's obligation to assume the employment contracts included in the Assumed
Contracts. Nothing in this Agreement shall be construed to provide employees of
Sellers and the Sinclair Sellers with any rights under this Agreement, and no
Person, 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 only be enforceable by, the parties hereto
and their respective successors and assigns as permitted hereunder.
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(g) At Closing, Buyer shall assume the obligations of the
Sinclair Sellers under the Scheduled Retention Agreements set forth on Schedule
6.10 with respect to certain of the Transferred Employees of KCFX-FM.
(h) For eighteen (18) calendar months after the Closing Date (a)
none of Sellers or any of their Affiliates shall hire any of the Transferred
Employees; provided that the provisions of this Section 6.10(h)(a) shall not
apply to any Transferred Employee terminated by Buyer; and provided further that
this Section 6.10(h)(a) does not apply to any employees (other than the
Transferred Employees) hired by the Seller Entities (as defined below) after the
Closing Date, and (b) other than the Transferred Employees, Buyer shall not hire
any employees of Sellers or any Affiliate or parent of Sellers (the "Seller
Entities") who are employees, as of the Closing Date of any of the radio
broadcast stations owned, operated, or programmed by any of the Seller Entities
in the Kansas City market ("Sellers' Employees"); provided that the provisions
of this Section 6.10(h)(b) do not apply to Sellers' Employees whose employment
is terminated by the Seller Entities; and provided further that the provisions
of this Section 6.10(i)(b) do not apply to any employees (other than Sellers'
Employees) hired by Buyer after the Closing Date.
6.11 Lease Agreement and Shared Property Agreement. At Closing, Buyer
and Entercom Kansas City shall enter into (i) the lease (the "Lease") for the
antenna and certain other transmission equipment of KCFX-FM, in the form
attached hereto as Exhibit 1 and (ii) the shared property agreement (the "Shared
Property Agreement") for the use of certain transmitter equipment and assets of
KCFX-FM, in the form attached hereto as Exhibit 2.
6.12 Public Announcements. Sellers and Buyer shall consult with each
other before issuing any press releases or otherwise 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; provided, however, that a party may, without the prior
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 Entercom 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.
6.13 Disclosure Schedules. Sellers and Buyer acknowledge and agree that
Sellers shall not be liable for the failure of the Schedules to be accurate as a
result of (a) the operation of the Stations prior to the Closing in accordance
with Section 5 of this Agreement or (b) the failure of the Sinclair Sellers to
update the Schedules that they provided to Buyers as part of the
Entercom/Sinclair Contract. The inclusion of any fact or item on a Schedule
referenced by a particular section in this Agreement shall, should the existence
of the fact or item or its contents be relevant to any other section, be deemed
to be disclosed with respect to such other section whether or not an explicit
cross-reference appears in the Schedules if such relevance is readily apparent
from examination of such Schedules.
6.14 Bulk Sales Law. Buyer hereby waives compliance by Sellers and the
Sinclair Sellers, in connection with the transactions contemplated hereby, with
the provisions of any applicable bulk transfer laws.
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6.15 Environmental Site Assessment.
6.15.1 Within thirty (30) days of the execution of this Agreement,
Buyer may obtain Phase I Environmental Assessments at Buyer's expense for any or
all of the parcels of the Owned or Leased Real Property (the "Environmental
Assessments"). In the event any Environmental Assessment discloses any
conditions contrary to any representations and warranties (determined without
regard to any knowledge qualifier therein) or any potential that such conditions
may exist, the Buyer may conduct or have conducted at its expense additional
testing to confirm or negate the existence of any such conditions. If any such
Environmental Assessment or additional testing reflects the existence of any
such conditions at any Owned Real Property or, to the extent caused by any of
the Assets, at any of the Leased Real Property, and if, and only if, the
estimated cost of remediation, exceeds Fifty Thousand Dollars ($50,000) (such
amount, the Environmental Threshold Amount"), in the aggregate for all parcels
of the Real Property to be conveyed by Sellers hereunder Sellers shall cause the
conditions to be remedied as quickly as possible (and in all events prior to
Closing for which such property is used in the operation of the Stations) such
that no conditions contrary to the representations and warranties (determined
with regard to any knowledge qualifier contained therein) of this Agreement
exist; provided, however, that Sellers shall not be obligated to expend in the
aggregate for the Stations in excess of Three Hundred Fifty Thousand Dollars
($350,000) to effect such remediation for all Real Property to be conveyed
hereunder. In the event that such remedial action(s) is estimated to cost in the
aggregate in excess of Three Hundred Fifty Thousand Dollars ($350,000), Sellers
may elect not to take such remedial action. In such event, Buyer may require
Sellers to proceed to the Closing of the Stations, and at the Closing, the
purchase price for any of the Stations acquired at the Closing shall be reduced
by the estimated cost of remediation for that portion of the Owned Real Property
to be acquired at the Closing, not to exceed in the aggregate for the Closing
the Unexpended Remediation Amount. Alternatively, Buyer may terminate this
Agreement, and Sellers shall have no liability to Buyer as a result of such
termination. Such Environmental Assessments shall not relieve Sellers of any
obligation with respect to any representation, warranty, or covenant of Sellers
in this Agreement or waive any condition to Buyer's obligations under this
Agreement. The cost of completing the Environmental Assessments shall be paid by
Buyer.
6.15.2 Nothing in this Section 6.15 shall be deemed to extend the
date on which the Closing would otherwise occur under this Agreement.
6.16 Reserved.
6.17 Adverse Developments. Sellers shall promptly notify Buyer of any
unusual or materially adverse developments that occur prior to the Closing with
respect to the assets used in the operations of KCMO-AM and KCMO-FM or the
operation of such stations and of any such developments prior to Closing
communicated to Sellers by the Sinclair Sellers with respect to the assets and
in the operation of KCFX-FM; provided, however, that Sellers' compliance with
the disclosure requirements of this Section 6.17 shall not relieve Sellers of
any obligation with respect to any representation, warranty or covenant of
Sellers in this Agreement or relieve Buyer of any obligation or duty hereunder,
waive any condition to Buyer's obligations under this Agreement, or expand or
enhance any right of Buyer hereunder.
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6.18 Title Insurance. Within ten (10) days of the date of this
Agreement, each Seller shall deliver to Buyer its current title insurance
policies with respect to the Owned Real Property. Sellers shall cooperate with
Buyer in obtaining the commitment of a title insurance company reasonably
satisfactory to Buyer agreeing to issue to Buyer, at standard rates, ALTA 1992
Form extended coverage title insurance policies, insuring Buyer's interest in
the Owned Real Property (the "Title Commitment"). The costs of the Title
Commitment and the policy to be issued pursuant to the Title Commitment shall be
paid by Buyer.
6.19 Surveys. Within forty-five (45) days of the date of this
Agreement, each Seller of Owned Real Property shall deliver to Buyer, at Buyer's
expense, surveys of the Owned Real Property performed by surveyors reasonably
acceptable to Buyer sufficient to remove any "survey exception" from the title
insurance policies to be issued pursuant to the Title Commitments.
6.20 Reserved.
6.21 Reserved.
6.22 Cooperation on Tax Matters. The parties intend to allow for the
election by Sellers ("Election") to have the sale of all or a portion of the
Assets contemplated by this Agreement become part of a "Tax Deferred Exchange"
in accordance with the provisions of the Code. Buyer covenants and agrees to
participate and fully cooperate with Sellers (and any qualified intermediary
involved in the Tax Deferred Exchange), in the event of an Election, so long as
such participation and cooperation does not have an adverse effect on Buyer. To
the extent that any provision in this Section 6.22 or in this Agreement shall be
found inconsistent with or in violation of any of the terms of Section 1031 of
the Code, such provision shall be null and void, all other provisions of this
Agreement shall remain in full force and effect, and the parties shall endeavor
to agree upon alternative provisions that affect a "Tax Deferred Exchange" of
property in such manner as will comply with Section 1031 of the Code. If no such
agreement is reached within a reasonable period, then this Agreement shall be
performed without an exchange of properties.
6.23 Nonsolicitation. During the period beginning on the date hereof
and ending eighteen months after the Closing Date, Sellers and their Affiliates,
and Buyer and its Affiliates, shall be prohibited from contracting for,
negotiating for, or soliciting any of the rights relating to certain programming
content or promotional materials, as set forth on Schedule 6.23. The rights
granted to Buyer under this Nonsolicitation section by Sellers shall terminate
upon the sale of the Station or Stations to which the rights relate.
6.24 Collective Bargaining Duty. To the extent required by law, Buyer
shall negotiate in good faith with the American Federation of Television and
Radio Artists with regard to the employees of KCMO-AM and KCMO-FM in accordance
with all applicable labor laws.
6.25 Shared Use of KCFX Studio. During the period beginning on the
Closing Date and ending 60 days thereafter (the "Transition Period"), Buyer and
Sellers shall have shared use of the KCFX Studio and the KCMO Studio and Office
Space, 4935 Berlinder Road, Westwood, Kansas (the "KCMO Studio"). During the
Transition Period, each of the parties agrees to
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cooperate in good faith for an orderly transition of the equipment required to
be relocated from the KCFX Studio to the KCMO Studio and from the KCMO Studio to
the KCFX Studio. Each of the parties further agrees that any costs associated
with transferring the equipment used in connection with the operations of
KQRC-FM, KCIY-FM or KXTR-FM from the KCFX Studio to the KCMO Studio shall be
borne by Sellers, and that any costs associated with transferring the equipment
currently used in connection with KCMO-AM and KCMO-FM from the KCMO Studio to
the KCFX Studio shall be borne by Buyer.
SECTION 7.
----------
CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER
---------------------------------------------
7.1 Conditions to Obligations of Buyer. All obligations of Buyer at the
Closing hereunder with respect to the Stations are subject at Buyer's option to
the fulfillment prior to or at the Closing Date of each of the following
conditions:
(a) Representations and Warranties. All representations and
warranties of Sellers contained in this Agreement shall be true and complete at
and as of the Closing Date as though made at and as of that time, (except for
representations and warranties that speak as of a specific date or time which
need only be true and complete as of such date or time), except where the
failure to be true and complete (determined without regard to any materiality
qualifications therein) does not have a Material Adverse Effect.
(b) Covenants and Conditions. Sellers shall have performed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date, except where the failure to have performed and complied (determined
without regard to any materiality qualifications therein) does not have a
Material Adverse Effect.
(c) FCC Consent. The FCC Consent shall have been granted,
notwithstanding that it may not have yet become a Final Order, unless any filing
is made with the FCC that pertains to or becomes associated with any request for
consent to the assignment of any of the FCC Licenses (an "FCC Objection"), in
which case, Buyer shall not be obligated to close until the FCC Consent shall
have become a Final Order, unless in the reasonable judgment of Buyer's counsel
such objection would not reasonably be expected to result in a denial of the FCC
Consent, or the designation for hearing for the applications for FCC Consent.
(d) Hart-Scott-Rodino. All applicable waiting periods under
Hart-Scott-Rodino shall have expired or terminated.
(e) Governmental Authorizations. Sellers shall be the holder of
all KCMO FCC Licenses, the Sinclair Sellers shall be the holder of all KCFX FCC
Licenses, and there shall not have been any modification, revocation, or
non-renewal of any License that has had a Material Adverse Effect. No proceeding
shall be pending the effect of which could be to revoke, cancel, fail to renew,
suspend, or modify materially and adversely any FCC License.
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(f) Consents. All consents of third parties that are required for
the valid and binding assignment to Buyer of all Material Contracts marked by an
asterisk on Schedules 3.5 and 3.7 shall have been obtained (or available upon
consummation of the Closing).
(g) Deliveries. Sellers shall have made or stand willing to make
all the deliveries to Buyer described in Section 8.2.
(h) Satisfactory Environmental Assessment. To the extent that any
Environmental Assessment or additional testing conducting pursuant to Section
6.15 hereof reflects the existence of conditions contrary to any representation
or warranty in this Agreement, either (i) Sellers shall have completed the
remediation of such conditions in accordance with Section 6.15 hereof, or (ii)
Buyer shall have provided notice to Sellers of Buyer's election to proceed to
Closing with the proration to the Purchase Price specified in Section 6.15
hereof.
(i) Entercom/Sinclair Contract. All conditions to closing set
forth in Section 7 of the Entercom/Sinclair Contract shall have been fulfilled
or waived, other than conditions which have not been fulfilled as a result of a
material breach by Entercom of the Entercom/Sinclair Contract.
7.2 Conditions to Obligations of Sellers. All obligations of Sellers at
the Closing hereunder are subject at Sellers' option to the fulfillment prior to
or at the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements and conditions
required by this Agreement to be performed or complied with by it prior to or on
the Closing Date.
(c) FCC Consent. The FCC Consent shall have been granted.
(d) Hart-Scott-Rodino. All applicable waiting periods under
Hart-Scott-Rodino shall have expired or terminated.
(e) Deliveries. Buyer shall have made or stand willing to make
all the deliveries described in Section 8.3.
SECTION 8.
----------
CLOSING AND CLOSING DELIVERIES
------------------------------
8.1 Closing.
(a) Closing Date.(i) Except as provided below in this Section 8.1
or as otherwise agreed to by Buyer and Sellers, the Closing hereunder
shall be held for all of the Stations on a date specified by Sellers
(it being understood that the parties intend that the Closing occur
simultaneously with the closing of the Entercom/Sinclair Contract) on
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at least five (5) days written notice that is not earlier than the
first business day after or later than ten (10) business days after the
date on which all of the conditions to Closing have been satisfied or
waived;
(ii) If any event occurs that prevents signal
transmission by any of the Stations in the normal and usual manner and
Sellers cannot restore the normal and usual transmission before the
date on which the Closing would otherwise occur pursuant to this
Section 8.1(a), and this Agreement has not been terminated under
Section 9, Sellers shall diligently take such action as reasonably
necessary to restore such transmission (or, in the case of KCFX-FM, to
avail themselves of their rights under the Entercom/Sinclair Contract
to cause the restoration of such transmission by the Sinclair Sellers),
and the Closing shall be postponed until a date within the effective
period of the FCC Consent (as it may be extended pursuant to Section
6.1(c)) to allow Sellers to restore (or to avail themselves of their
rights under the Entercom/Sinclair Contract to cause the restoration
of) the normal and usual transmission for such Station. If the Closing
is postponed pursuant to this paragraph, the date of the Closing shall
be ten (10) days after notice by Sellers to Buyer that transmission has
been restored. Notwithstanding anything to the contrary in this
Agreement, Buyer shall not be obligated to close if the transmission of
any Station is not operating in the normal and usual manner, unless and
until the Sellers have restored (or caused the restoration of) the
transmission of such Station to its normal and usual level.
(iii) If there is in effect on the date on which the
Closing would otherwise occur pursuant to this Section 8.1(a) any
judgment, decree or order that would prevent or make unlawful the
Closing on that date, the Closing shall be postponed until a date
within the effective period of the FCC Consent (as it may be extended
pursuant to Section 6.1(c)), to be set by Sellers (it being understood
that the parties intend that the Closing occur simultaneously with the
closing of the Entercom/Sinclair Contract), when such judgment, decree,
or order no longer prevents or makes unlawful the Closing.
(b) Closing Place. The Closing hereunder shall be held at the
place of closing under the Entercom/Sinclair Contract, or any other place that
is mutually agreed upon by Buyer and Sellers.
8.2 Deliveries by Sellers. Prior to or on Closing Date, Sellers shall
deliver to Buyer (and in the case of documents specified in subsection (a)
hereof pertaining to KCFX-FM, Sellers shall avail themselves of their rights
under the Entercom/Sinclair Contract to cause the Sinclair Sellers to deliver to
Buyer) the following, in form and substance reasonably satisfactory to Buyer and
its counsel:
(a) Conveyancing Documents. Duly executed deeds in form and
quality equivalent to the deeds by which Sellers obtained title, bills of sale,
motor vehicle titles, assignments, and other transfer documents that are
sufficient to vest good and marketable title to the Assets being transferred at
the Closing in the name of Buyer, free and clear of all mortgages, liens,
restrictions, encumbrances, claims and obligations except for Permitted
Encumbrances;
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(b) Officer's Certificate. A certificate, dated as of the Closing
Date, executed by an officer of Sellers, certifying: (i) that the
representations and warranties of Sellers contained in this Agreement are true
and complete as of the Closing Date as though made on and as of that date
(except for representations and warranties that speak as of a specific date or
time, which need only be true and complete as of such date or time), except to
the extent that the failure of such representations and warranties (in each case
determined without regard to any materiality qualifications contained therein)
shall not have had a Material Adverse Effect, and (ii) that Sellers have in all
respects performed and complied with all of its obligations, covenants and
agreements in this Agreement to be performed and complied with on or prior to
the Closing Date, except to the extent that the failure to perform such
covenants (in each case determined without regard to any materiality
qualifications contained therein) shall not have had a Material Adverse Effect.
(c) Secretary's Certificate. A certificate, dated as of the
Closing Date, executed by each of the Seller's Secretary, members, partners or
designees, as the case may be: (i) certifying that the resolutions, as attached
to such certificate, were duly adopted by such Seller's Board of Directors and
shareholders (if required) or by the members in the case of a limited liability
company), authorizing and approving the execution of this Agreement and the
consummation of the transaction contemplated hereby and that such resolutions
remain in full force and effect; and (ii) providing, as attachments thereto, the
Articles of Incorporation and Bylaws (or other organizational documents) of such
Seller;
(d) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent which has been received by Sellers which
relate to the Stations or, the Assets of which are being transferred at the
Closing;
(e) Good Standing Certificates. To the extent available from the
applicable jurisdictions, certificates as to the formation and/or good standing
of each Seller issued by the appropriate governmental authorities in the states
of organization and each jurisdiction in which such Sellers are qualified to do
business, each such certificate (if available) to be dated a date not more than
a reasonable number of days prior to the Closing Date;
(f) Opinions of Counsel. Opinions of Sellers' counsel and
communications counsel dated as of the Closing Date, in form and substance
reasonably satisfactory to Buyer; and
(g) Lease. An executed copy of the Lease.
(h) Shared Property Agreement. An executed copy of the Shared
Property Agreement.
(i) Other Documents. Such other documents reasonably requested by
Buyer or its counsel for complete implementation of this Agreement and
consummation of the transaction contemplated hereby.
8.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer shall
deliver to Sellers, and to the Sinclair Sellers in the case of documents
specified in subsection (d) hereof pertaining
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to KCFX-FM, the following, in form and substance reasonably satisfactory to
Sellers and their counsel:
(a) Closing Payment. The payment of the Estimated Purchase Price
described in Section 2.4(a);
(b) Officer's Certificate. A certificate, dated as of the Closing
Date, executed on behalf of an officer of the Buyer, certifying (i) that the
representations and warranties of Buyer contained in this Agreement are true and
complete in all material respects as of the Closing Date as though made on and
as of that date, and (ii) that Buyer has in all material respects performed and
complied with all of its obligations, covenants and agreements in this Agreement
to be performed and complied with on or prior to the Closing Date;
(c) Secretary's Certificate. A certificate, dated as of the
Closing Date, executed by Buyer's Secretary: (i) certifying that the
resolutions, as attached to such certificate, were duly adopted by Buyer's Board
of Directors, authorizing and approving the execution of this Agreement and the
consummation of the transaction contemplated hereby and that such resolutions
remain in full force and effect; and (ii) providing, as an attachment thereto,
Buyer's Certificate of Incorporation and Bylaws;
(d) Assumption Agreements. Appropriate assumption agreements
pursuant to which Buyer shall assume and undertake to perform (i) Sellers'
obligations and liabilities arising out of the business and operations of
KCMO-AM and KCMO-FM to the extent provided under this Agreement, including
(without limitation) under the KCMO-FM Licenses and the Assumed Contracts
pertaining to KCMO-AM and KCMO-FM; and (ii) the Sinclair Sellers' obligations
and liabilities arising out of the business and operations of KCFX-FM to the
extent such obligations and liabilities are to be assigned to Entercom under the
Entercom/Sinclair Contract, including (without limitation) under the KCFX
Licenses and the Assumed Contracts pertaining to KCFX-FM.
(e) Good Standing Certificates. To the extent available from the
applicable jurisdictions, certificates as to the formation and/or good standing
of Buyer issued by the appropriate governmental authorities in the state of
organization and each jurisdiction in which Buyer is qualified to do business,
each such certificate (if available) to be dated a date not more than a
reasonable number of days prior to the Closing Date;
(f) Opinion of Counsel. An opinion of Buyer's counsel dated as of
the Closing Date, in form and substance reasonably satisfactory to Seller;
(g) Sinclair Acknowledgement Certificate. A certificate to the
effect set forth in Section 11.3(b), subclause (h), of the Entercom/Sinclair
Contract; and
(h) Lease. An executed copy of the Lease.
(i) Shared Property Agreement. An executed copy of the Shared
Property Agreement.
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(j) Other Documents. Such other documents reasonably requested by
Sellers or their counsel for complete implementation of this Agreement and
consummation of the transactions contemplated hereby.
SECTION 9.
----------
TERMINATION
-----------
9.1 Termination by Mutual Consent. This Agreement may be terminated at
any time prior to Closing by the mutual consent of the parties.
9.2 Termination by Seller. This Agreement may be terminated by Sellers
and the sale and transfer of the Stations abandoned, if:
(a) Sellers are not then in material default hereunder, upon
written notice to Buyer if on the date that would otherwise be the Closing Date
any of the conditions precedent to the obligations of Sellers set forth in
Sections 7.2(a), 7.2(b) and 7.2(e) of this Agreement has not been satisfied or
waived in writing by Sellers (whether or not occurring as the result of Buyer's
material breach of any provision of this Agreement);
(b) Buyer shall default in the performance of its obligations
under this Agreement in any material respect and such default is not cured
within thirty (30) days after notice thereof;
(c) Sellers are not then in material default hereunder and
Closing has not occurred within one (1) calendar year from the date hereof and
failure of Closing to have occurred is due to the failure to receive any
regulatory approval required for Closing, including, but not limited to,
expiration or termination of the Hart-Scott-Rodino waiting period, any FCC
Consents (including, without limitation, such facts as are disclosed on Schedule
4.6 hereto), and the failure of such consent, expiration or termination to be
granted is the result of facts relating to Buyer or any Affiliate of Buyer;
(d) Sellers are not then in material default hereunder if the
Closing has not occurred within twenty four (24) months from the date hereof due
to the failure to receive any regulatory approval required for Closing,
including, but not limited to, the expiration or termination of the
Hart-Scott-Rodino waiting period of any FCC Consent, and the failure of such
consent, expiration, or termination to be granted is the result of facts
relating to Sellers;
(e) Closing has not occurred with respect to the Stations within
eighteen (18) months from the date hereof, if Sellers are not then in material
default hereunder, and Closing has not occurred for any reason other than as
provided in Section 9.2(d); or
(f) the Sinclair Sellers lawfully terminate the Entercom/Sinclair
Contract.
9.3 Termination by Buyer. This Agreement may be terminated by Buyer and
the exchange and transfer of the Stations abandoned, if:
(a) Buyer is not then in material default, upon written notice to
Sellers if on the date that would otherwise be the Closing Date any of the
conditions precedent to the obligations of Buyer set forth in Sections 7.1(a),
7.1(b), 7.1(e), 7.1(f), 7.1(h), and 7.1(i) of this Agreement
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(and only such Sections) has not been satisfied or waived in writing by Buyer
(whether or not occurring as the result of Sellers' material breach of any
provision of this Agreement);
(b) Sellers shall have defaulted in the performance of Sellers'
obligations under this Agreement, and such default is not cured within thirty
(30) days after notice thereof and such default has had a Material Adverse
Effect; or
(c) Buyer is not then in material default hereunder and Closing
has not occurred within fifteen (15) months from the date hereof and failure to
close is due to the failure to receive any regulatory approval required for
Closing, including, but not limited to, expiration or termination of the
Hart-Scott-Rodino waiting period and any FCC Consents and the failure to receive
such consent is due to facts relating to Sellers or any Affiliate of Sellers.
(d) Closing has not occurred with respect to the Stations within
eighteen (18) months from the date hereof, if the terminating party is not then
in material default hereunder and the Closing has not occurred for any reason
other than as provided in Section 9.2(c).
9.4 Rights on Termination. If this Agreement is terminated by Buyer
pursuant to Section 9.3 as a result of Sellers' material breach of any provision
of this Agreement or pursuant to Section 9.3(d), Buyer shall be entitled to the
immediate return of the amount of the Escrow Deposit, and Buyer shall have all
rights and remedies available at law or equity, including the remedy of specific
performance described in Section 9.6 below. If this Agreement is terminated by
Sellers pursuant to Section 9.2 (a), (b) or (c), Sellers, as their sole remedy,
shall be entitled to receive the amount of the Escrow Deposit, together with all
interest or other proceeds from the investment thereof, but less any
compensation due Escrow Agent, as liquidated damages in full and final
settlement of all claims of Sellers under this Agreement, and there shall be no
other or further obligations or remedies of Sellers hereunder.
9.5 Liquidated Damages Not a Penalty. With respect to the liquidated
damages as described and provided for in Section 9.4 hereof, Sellers and Buyer
hereby acknowledge and agree that the damage that may be suffered by Sellers in
the event of a default by Buyer hereunder is not readily ascertainable and that
such liquidated damages as of the date hereof are a reasonable estimate of such
damages and are intended to compensate Sellers for any such damage and are not
to be construed as a penalty.
9.6 Specific Performance. The parties recognize that if Sellers breach
this Agreement and refuse to perform under the provisions of this Agreement,
monetary damages alone would not be adequate to compensate Buyer for its injury.
Buyer shall therefore be entitled, in addition to any other remedies that may be
available, to obtain specific performance of the terms of this Agreement. If any
action is brought by Buyer to enforce this Agreement, Sellers shall waive the
defense that there is an adequate remedy at law.
9.7 Attorneys' Fees. In the event of a default by either party that
results in a lawsuit or other proceeding for any remedy available under this
Agreement, the prevailing party shall be entitled to reimbursement from the
other party of its reasonable legal fees and expenses (whether incurred in
arbitration, at trial, or on appeal).
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9.8 Survival. Notwithstanding the termination of this Agreement
pursuant to this Section 9, the obligations of Buyer and Sellers set forth in
Sections 6.2, 6.4, 9, 10, and 11 shall survive such termination and the parties
hereto shall have any and all rights and remedies to enforce such obligations
provided at law or in equity or otherwise (including without limitations,
specific performance).
SECTION 10.
-----------
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
-------------------------------------------
INDEMNIFICATION; CERTAIN REMEDIES
---------------------------------
10.1 Survival of Representations. 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 to the following extent:
(a) representations and warranties (other than the representations and
warranties set forth in Section 3.16) shall survive for a period of twelve (12)
months after the Closing Date, (b) except as otherwise provided herein, the
covenants and agreements which, by their terms, survive the Closing shall
continue in full force and effect until fully discharged (but not beyond the
expiration of twelve (12) months after the Closing Date), and (c) any
representation, warranty, covenant or agreement that is the subject of a claim
which is asserted in a reasonably detailed writing prior to the expiration of
the survival period set forth in this Section 10.1 shall survive with respect to
such claim or dispute until the final resolution thereof; provided that
notwithstanding the foregoing, representations and warranties set forth in
Section 3.16 and the covenant in Section 6.15 shall survive for the lesser of
(i) eighteen (18) months after the Closing Date, and (ii) the expiration of the
applicable statute of limitations, but, in no event, shall the survival period
in this proviso be less than one (1) year after the Closing Date; provided
further that the covenants and agreements set forth in Section 6.4
Confidentiality, Section 6.5 Cooperation, Section 6.9 Books and Records, Section
11.1 Fees and Expenses, Section 11.2 Notices, and Section 11.3 Benefit and
Binding Effect shall survive the Closing for the period provided therein or, if
no period is specified, in perpetuity; and provided finally that anything to the
contrary in this Section 10.1 notwithstanding any claim for indemnification
under Section 10 hereof which is asserted in a reasonably detailed writing prior
to the expiration of the survival periods provided in this Section 10.1 shall
survive with respect to such claim or dispute until final resolution thereof.
10.2 Indemnification by Seller. After the Closing but subject to
Sections 10.1 and 10.5, Sellers hereby agree to indemnify and hold Buyer
harmless against and with respect to, and shall reimburse Buyer for:
(a) Any and all losses, liabilities, or damages arising out of or
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant by Sellers contained in this Agreement or in any certificate,
document, or instrument delivered to Buyer under this Agreement;
(b) Any and all obligations of Sellers not assumed by Buyer
pursuant to this Agreement, including any liabilities arising at any time under
any Contract not included in the Assumed Contracts;
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(c) Any loss, liability, obligation, or cost arising out of or
resulting from the failure of Sellers and the Sinclair Sellers to comply with
the provisions of any bulk sales law applicable to the transfer of the Assets;
(d) Any and all obligations, losses, liabilities, or damages
arising out of or resulting from the operation or ownership of the Stations
prior to the Closing (except any losses, liabilities or damages for which Buyer
has received a proration in its favor or a reduction in Purchase Price under
Section 6.15), including any liabilities arising under the Licenses or the
Assumed Contracts to the extent that they relate to events occurring prior to
the Closing Date; and
(e) Any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit, proceeding,
claim, demand, assessment, or judgment incident to the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.3 Indemnification by Buyer. Notwithstanding the Closing, but subject
to Section 10.5, Buyer hereby agrees to indemnify and hold Sellers harmless
against and with respect to, and shall reimburse Sellers for:
(a) Any and all losses, liabilities, or damages arising out of or
resulting from any untrue representation, breach of warranty, or nonfulfillment
of any covenant by Buyer contained in this Agreement or in any certificate,
document, or instrument delivered to Sellers under this Agreement;
(b) Any and all obligations of Sellers and the Sinclair Sellers
assumed by Buyer pursuant to this Agreement;
(c) Any and all obligations, losses, liabilities, or damages
arising out of or resulting from the operation or ownership of the Stations
after the Closing (including, without limitation, any obligations of Sellers or
any Affiliate thereof pursuant to any agreements by which the obligations of any
of the Stations have been guaranteed), except any losses, liabilities or damages
for which Sellers have received a proration in their favor; and
(d) Any and all out-of-pocket costs and expenses, including
reasonable legal fees and expenses, incident to any action, suit, proceeding,
claim, demand, assessment, or judgment incident to the foregoing or incurred in
investigating or attempting to avoid the same or to oppose the imposition
thereof, or in enforcing this indemnity.
10.4 Procedure for Indemnification. The procedure for indemnification
shall be as follows:
(a) The party claiming indemnification (the "Claimant") shall
promptly give notice to the party from which indemnification is claimed (the
"Indemnifying Party") of any claim, whether between the parties or brought by a
third party, specifying in reasonable detail the factual basis for the claim. If
the claim relates to an action, suit, or proceeding filed by a third party
against Claimant, such notice shall be given by Claimant within five business
days after written notice of such action, suit, or proceeding was given to
Claimant.
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(b) With respect to claims solely between the parties, following
receipt of notice from the Claimant of a claim, the Indemnifying Party shall
have thirty days to make such investigation of the claim as the Indemnifying
Party deems necessary or desirable. For the purposes of such investigation, the
Claimant agrees to make available to the Indemnifying Party and its authorized
representatives the information relied upon by the Claimant to substantiate the
claim. If the Claimant and the Indemnifying Party agree at or prior to the
expiration of the thirty-day period (or any mutually agreed upon extension
thereof) to the validity and amount of such claim, the Indemnifying Party shall
immediately pay to the Claimant the full amount of the claim. If the Claimant
and the Indemnifying Party do not agree within the thirty-day period (or any
mutually agreed upon extension thereof), the Claimant may seek appropriate
remedy at law or equity.
(c) With respect to any claim by a third party as to which the
Claimant is entitled to indemnification under this Agreement, the Indemnifying
Party shall have the right at its own expense, to participate in or assume
control of the defense of such claim, and the Claimant shall cooperate fully
with the Indemnifying Party, subject to reimbursement for actual out-of-pocket
expenses incurred by the Claimant as the result of a request by the Indemnifying
Party, provided, however, that Indemnifier may not assume control of the defense
unless it affirms in writing its obligation to indemnify Claimant for any
damages incurred by Claimant with respect to such third-party claim. If the
Indemnifying Party elects to assume control of the defense of any third-party
claim, the Claimant shall have the right to participate in the defense of such
claim at its own expense. If the Indemnifying Party does not elect to assume
control or otherwise participate in the defense of any third-party claim, it
shall be bound by the results obtained in good faith by the Claimant with
respect to such claim.
(d) If a claim, whether between the parties or by a third party,
requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) The indemnification rights provided in Section 10.2 and
Section 10.3 shall extend to the members, partners, shareholders, officers,
directors, employees, representatives and affiliated entities of any Claimant
although for the purpose of the procedures set forth in this Section 10.4, any
indemnification claims by such parties shall be made by and through the
Claimant.
10.5 Certain Limitations.
(a) Notwithstanding anything in this Agreement to the contrary,
neither party shall indemnify or otherwise be liable to the other party with
respect to any claim for any breach of a representation or warranty, or for the
breach of any covenant contained in this Agreement, unless notice of the claim
is given within the relevant survival period specified in Section 10.1.
(b) Notwithstanding anything in this Agreement to the contrary,
but except as otherwise provided in this subsection (b): (i) Sellers shall not
be liable to Buyer in respect of any indemnification hereunder except to the
extent that (A) the aggregate amount of losses of Buyer, if any, exceeds Five
Hundred Thousand Dollars ($500,000) (the "Threshold Amount") and (B) the
aggregate amount of losses of Buyer, if any, is less than the excess of Ten
Million Dollars
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($10,000,000) over any amounts expended by Sellers pursuant to Section 6.15 or
with respect to which Buyer receives a proration in its favor under Section 6.15
(such excess being the "Indemnity Cap"); provided, the foregoing shall not be
applicable to any amounts owed in connection with the Purchase Price or the
proration adjustment thereof; and (ii) Buyer shall not be liable to Sellers in
respect of any indemnification hereunder except to the extent that (A) the
aggregate amount of losses of Sellers, if any, exceeds the Threshold Amount and
(B) the aggregate amount of losses of Sellers, if any, is less than the
Indemnity Cap. In determining whether Sellers shall be obligated to indemnify
Buyer, or Buyer shall be obligated to indemnify Sellers, in each case, under
this Section 10, once the Threshold Amount has been satisfied, each
representation and warranty and each covenant contained in this Agreement for
which indemnity may be sought hereunder shall be read solely for purposes of
determining whether a breach of such representation, warranty or covenant has
occurred without regard to materiality (including Material Adverse Effect)
qualifications that may be contained therein.
(c) Notwithstanding any other provision of this Agreement to the
contrary, in no event shall a party be entitled to indemnification for such
party's consequential or punitive damages, regardless of the theory of recovery.
Each party hereto agrees to use reasonable efforts to mitigate any losses which
form the basis for any claim for indemnification hereunder.
(d) After Closing, indemnification pursuant to Section 10 hereof
shall be the sole and exclusive remedy for all claims of damages of any party in
connection with any breach by any other party of its representations, warranties
or covenants.
SECTION 11.
-----------
MISCELLANEOUS
-------------
11.1 Fees and Expenses.
(a) Buyer and Sellers shall each pay one-half of (i) any fees
charged by the FCC in connection with obtaining the FCC Consent, and (ii) any
filing fees incurred in connection with any Hart-Scott-Rodino Filings.
(b) Buyer and Sellers shall each pay one-half (1/2) of any filing
fees, transfer taxes, document stamps, or other charges levied by any
governmental entity (other than income Taxes, which shall be the responsibility
of Sellers) on account of the transfer of the Assets from Sellers to Buyer.
(c) Except as otherwise provided in this Agreement, each party
shall pay its own expenses incurred in connection with the authorization,
preparation, execution and performance of this Agreement, including all fees and
expenses of counsel, accountants, agents and representatives, and each party
shall be responsible for all fees or commissions payable to any finder, broker,
advisor, or similar Person retained by or on behalf of such party.
11.2 Notices. All notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be (a) in writing, (b)
sent by telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (c) deemed to have been given on the
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date telecopied with receipt confirmed, the date of personal delivery, or the
date set forth in the records of the delivery service or on the return receipt,
and (d) addressed as follows:
To Sellers:
----------
Entercom Communications Corp.
401 City Avenue, Suite 409
Bala Cynwyd, Pennsylvania 19004
Attn: David J. Field
Telecopy: (610) 660-5620
Telephone: (610) 660-5610
with a copy Latham & Watkins
(which shall 1001 Pennsylvania Avenue, Suite 1300
not constitute Washington, D.C. 20004-2505
notice) to: Attn: Joseph D. Sullivan, Esquire
Telecopy: (202) 637-2201
Telephone: (202) 637-2200
To Buyers:
---------
Susquehanna Radio Corp.
140 East Market Street
York, PA 17401
Attn: Craig W. Bremer, Esquire
Telecopy: (717) 771-1440
Telephone: (717) 852-2305
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 11.2.
11.3 Benefit and Binding Effect.
(a) Buyer shall have the right to assign all or any portion of
its rights under this Agreement to (i) any entity under common control with
Buyer or any wholly-owned direct subsidiary of Buyer, (ii) a Qualified
Intermediary under Section 1031 of the Code, or (iii) any lender or any agent
for such lender(s) for collateral purposes only; provided, that no such
assignment shall relieve Buyer of its obligations hereunder. Sellers may assign,
combine, merge, or consolidate among themselves and any Affiliate of Sellers so
long as Sellers or their successors and assigns are bound by the terms and
conditions of this Agreement in all respects as if such successors and assigns
were original parties hereto, and such assignment, combination, merger, or
consolidation does not have an adverse affect on Buyer. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No Person, 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
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hereunder. Other than as expressly set forth in this Section 11.3(a), no party
may assign or transfer all or any portion of its rights under this Agreement
without the prior written consent of the parties hereto.
11.4 Further Assurances. The parties shall take any actions and execute
any other documents that may be necessary or desirable to the implementation and
consummation of this Agreement.
11.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF). IN ADDITION, EACH OF THE PARTIES HERETO
SUBMITS TO LOCAL JURISDICTION IN THE STATE OF MARYLAND AND AGREES THAT ANY
ACTION BY ANY PARTY HEREUNDER SHALL BE INSTITUTED IN THE STATE OF MARYLAND.
11.6 Entire Agreement. This Agreement, the Schedules hereto, and all
documents, certificates and other documents to be delivered by the parties
pursuant hereto, collectively, represent the entire understanding and agreement
between Buyer and Sellers with respect to the subject matter of this Agreement.
This Agreement supersedes all prior negotiations between the parties and cannot
be amended, supplemented, or changed except by an agreement in writing duly
executed by each of the parties hereto.
11.7 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
representation, warranty, covenant, agreement, or condition herein may be waived
by the party entitled to the benefits thereof only by a written instrument
signed by the party granting such waiver, but such waiver or failure to insist
upon strict compliance with such obligation, representation, warranty, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 11.7.
11.8 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.
11.9 Counterparts. This Agreement may be signed in two or more
counterparts with the same effect as if the signature on each counterpart were
upon the same instrument.
[Signatures Begin on Following Page]
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IN WITNESS WHEREOF, this Agreement has been executed by the
duly authorized officers of Buyer and Sellers as of the date first written
above.
Buyer: Sellers:
----- -------
SUSQUEHANNA RADIO CORP. ENTERCOM COMMUNICATIONS CORP.
By /s/ David. E. Kennedy By /s/ John C. Donlevie
----------------------------- ------------------------------
Name: David E. Kennedy Name: John C. Donlevie
Title: President Title: Executive Vice President
ENTERCOM KANSAS CITY, LLC
By: /s/ John C. Donlevie
-----------------------------
Name: John C. Donlevie
Title: Executive Vice President
ENTERCOM KANSAS CITY
LICENSE, LLC
By: /s/ John C. Donlevie
-----------------------------
Name: John C. Donlevie
Title: Executive Vice President
52
