FORM 10-QSB
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
X QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
- ----- ACT OF 1934
For the quarterly period ended September 30, 1996
_____ TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
For the transition period from ________________ to __________________________
Commission File Number 0-26530
TRIATHLON BROADCASTING COMPANY
(Exact name of small business issuer as specified in its charter)
DELAWARE 33-0668235
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
Symphony Towers
750 B Street, Suite 1920
San Diego, CA 92101
(Address of principal executive offices)
(619) 239-4242
(Issuer's telephone number)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
The number of shares of the Company's equity outstanding as of November 14,
1996 is: 3,102,344 shares of Class A Common Stock, par value $.01 per share;
244,890 shares of Class B Common Stock, par value $.01 per share; 50,000
shares of Class C Common Stock, par value $.01 per share; 1,444,366 shares of
Class D Common Stock, par value $.01 per share; and 5,834,000 Depository
Shares, each representing a one-tenth interest in a share of 9% Mandatory
Convertible Preferred Stock, par value $.01 per share.
Transitional Small Business Disclosure Format. Yes [ ] No [X]
<PAGE>
TRIATHLON BROADCASTING COMPANY
FORM 10-QSB
INDEX
Page
PART I-FINANCIAL INFORMATION
Item 1. Financial Statements
- ------- --------------------
<TABLE>
<S> <C>
Condensed consolidated balance sheets - September 30, 1996 (unaudited)
and March 31, 1996 3
Condensed consolidated statements of operations - Three and six months
ended September 30, 1996 and 1995 (unaudited) 4
Condensed consolidated statements of cash flows - Six months
ended September 30, 1996 and 1995 (unaudited) 5
Condensed consolidated statements of stockholders' equity -Six months
ended September 30, 1996 (unaudited) 6
Notes to condensed consolidated financial statements 7
Item 2. Management's Discussion and Analysis or Plan of Operation 11
- ------- ---------------------------------------------------------
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 17
- ------- ---------------------------------------------------
Item 5. Other Information 19
- ------- -----------------
Item 6. Exhibits and Reports on Form 8-K. 20
- ------- ---------------------------------
</TABLE>
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands)
<CAPTION>
September 30, March 31,
1996 1996
(unaudited) (Note)
ASSETS
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 12,783 $ 36,845
Accounts receivable, net 4,120 1,394
Notes receivable from officer 50 50
Other current assets 758 88
----------- ------------
Total Current Assets 17,711 38,377
Property and equipment - less accumulated depreciation 5,334 2,809
Intangible assets, net of accumulated amortization 41,408 19,339
Other assets, principally deposits for station acquisitions 7,215 8,856
---------- ----------
$ 71,668 $ 69,381
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Due to affiliates $ 613 $ 4,270
Accounts payable and accrued expenses 2,734 1,520
---------- ----------
Total Current Liabilities 3,347 5,790
Deferred taxes 2,502 2,502
Deferred compensation 129 27
Stockholders' Equity
Preferred Stock 12 11
Common Stock 48 48
Paid-in-capital 66,784 62,370
Accumulated deficit (1,154) (1,367)
---------- ----------
65,690 61,062
--------- ---------
$ 71,668 $ 69,381
======== ========
</TABLE>
Note: The balance sheet at March 31, 1996 has been derived from the audited
financial statements at that date but does not include all of the information
and footnotes required by generally accepted accounting principles for
complete financial statements.
See accompanying notes to condensed consolidated financial statements.
3
<PAGE>
<TABLE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
(unaudited)
<CAPTION>
Three Months Ended Six Months Ended September 30,
September 30,
1996 1995 1996 1995
<S> <C> <C> <C> <C>
Net revenues .......................... $ 5,424 $ 135 $ 9,950 $ 135
------- ------- ------- -------
Operating expenses
Station operating expenses ..... 3,795 119 $ 7,028 119
Depreciation and amortization .. 427 36 760 36
Corporate expenses ............. 311 24 802 24
Deferred compensation .......... 113 81 226 81
------- ------- ------- -------
Total operating expenses 4,646 260 8,816 260
------- ------- ------- -------
Operating income ...................... 778 (125) 1,134 (125)
Interest expense - net ................ 418 5 867 12
------- ------- ------- -------
Income (loss) before income taxes ..... 360 (130) 267 (137)
Provision for income taxes ............ 54 -- 54 --
------- ------- ------- -------
Net income (loss) ..................... 306 (130) 213 (137)
Preferred stock dividend requirement .. 1,378 -- 2,724 --
------- ------- ------- -------
Net loss applicable to common stock ... $(1,072) $ (130) $(2,511) $ (137)
======= ======= ======= =======
Net loss per common share ............. $ (.22) $ (0.05) $ (0.52) $ (0.10)
======= ======= ======= =======
Weighted average common shares
outstanding ....................... 4,842 2,417 4,842 1,331
</TABLE>
See accompanying notes to condensed consolidated financial statements.
4
<PAGE>
<TABLE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<CAPTION>
Six Months Ended September 30,
1996 1995
------------ ----------
<S> <C> <C>
Cash (used in)/provided by operations .............. $ (3,059) $ 107
Investing activities
Acquisition of net assets of radio stations (24,389) (6,770)
Capital expenditures ...................... (628) --
Deposits on radio station acquisitions .... (277) --
-------- --------
(25,294) (6,770)
Financing activities
Net proceeds from sale of preferred stock .. 7,015 --
Preferred stock dividends .................. (2,724) --
Net proceeds from initial public offering .. -- 11,387
-------- --------
4,291 11,387
Net (decrease)/increase in cash and cash equivalents (24,062) 4,724
Cash and cash equivalents at April 1, 1996 ......... 36,845 --
-------- --------
Cash and cash equivalents at September 30, 1996 .... $ 12,783 $ 4,724
======== ========
Supplemental cash flow information:
Cash paid for interest $ 293
========
Cash paid for taxes $ 35
========
Non-cash operating and financing activities:
Restricted cash transferred by SCMC in exchange
for issuance of Common Stock and Liability $ 765
========
Conversion of Liability to Radio Investors, Inc. into:
Note Payable $ 515
Common Stock 247
--------
$ 762
========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
5
<PAGE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
SIX MONTHS ENDED SEPTEMBER 30, 1996
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Series B Mandatory
Convertible Convertible Class A Class B Class C Class D
Preferred Preferred Common Common Common Common
Stock Stock Stock Stock Stock Stock
----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Balances at March 31, 1996 $6 $5 $28 $2 $4 $14
Issuance of 63 shares of Mandatory
Convertible Preferred Stock 1
Issuance of 317 shares of Class A
Common Stock upon conversion
of Class C Common Stock on a
one-for-one basis 3 (3)
Deferred compensation
Dividends on Mandatory
Convertible Preferred Stock
Net income
---- ---- ----- ---- ---- -----
Balances at September 30, 1996 $6 $6 $31 $2 $1 $14
== == === == == ===
<CAPTION>
Total
Paid-In Accumulated Stockholders'
Capital Deficit Equity
------- ------- ------
<S> <C> <C> <C>
Balances at March 31, 1996 $62,370 $(1,367) $61,062
Issuance of 63 shares of Mandatory 7,014 7,015
Convertible Preferred Stock
Issuance of 317 shares of Class A
Common Stock upon conversion
of Class C
Common Stock on a
one-for-one basis
124 124
Deferred compensation
Dividends on Mandatory (2,724) (2,724)
Convertible Preferred Stock 213 213
Net income ------- --------- ----------
$66,784 $(1,154) $65,690
Balances at September 30, 1996 ======= ======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
6
<PAGE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have
been prepared in accordance with generally accepted accounting principles for
interim financial information and with the instructions to Form 10-QSB and
Item 310(b) of Regulation S-B. Accordingly, they do not include all of the
information and footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered necessary for
a fair presentation have been included. Operating results for an interim
period are not necessarily indicative of the results that may be expected for
a full year. For further information, refer to the consolidated financial
statements and footnotes thereto included in the Triathlon Broadcasting
Company ("Company") annual report on Form 10-KSB for the year ended March 31,
1996. The condensed consolidated financial statements include the amounts of
the Company and its wholly owned subsidiaries.
The Company's revenues vary throughout the year. As is typical in the radio
broadcasting industry, the Company's fourth fiscal quarter (first calendar
quarter) generally produces the lowest revenues for the year and the third
fiscal quarter (fourth calendar quarter) generally produces the highest
revenues for the year. The Company's operating results in any period may be
affected by the incurrence of advertising and promotion expenses that do not
necessarily produce commensurate revenues until the impact of the advertising
and promotion is realized in future periods.
NOTE 2 - MANDATORY CONVERTIBLE PREFERRED STOCK
In March 1996, the Company completed an offering of 5,834,000 Depositary
Shares, including the partial exercise of the underwriters' over-allotment in
April 1996, each representing a one-tenth interest in a share of 9% Mandatory
Convertible Preferred Stock (the "Preferred Stock") at a price of $10.50 per
share (the "Preferred Stock Offering"). The Company's net proceeds from the
Preferred Stock Offering was approximately $56,400,000.
NOTE 3- ACQUISITIONS
The Company did not commence radio station ownership and operations until
September 13, 1995. As of September 30, 1996, the Company owns and operates,
sells advertising pursuant to Joint Sales Agreements ("JSAs") or provided
programming and sells advertising pursuant to Local Marketing Agreements
("LMAs") on 23 FM and 11 AM radio stations in the following seven markets:
Wichita, Kansas; Lincoln, Nebraska; Omaha, Nebraska; Little Rock, Arkansas;
Colorado Springs, Colorado; Spokane, Washington; and Tri-Cities, Washington.
Stations Owned and Operated. In September 1995, the Company acquired radio
stations KRBB(FM), KWSJ(FM), KFH-AM, and KQAM-AM, each operating in the
Wichita, Kansas market, for an aggregate purchase price of $5.9 million. On
January 24, 1996, the Company acquired radio stations KZKX(FM) and KTGL(FM),
each operating in the Lincoln, Nebraska market, for an aggregate purchase
price of approximately $9.7 million.
On April 10, 1996, the Company acquired the assets of KTNP(FM), operating in
the Omaha, Nebraska market, from 93.3 Inc. for a purchase price of $2.7
million, and the assets of KXKT(FM) from Valley Broadcasting Inc., also
operating in the Omaha market, for a purchase price of $8.1 million creating a
duopoly in this market. Also in April 1996, the Company acquired from Sterling
Realty Organization Co. the assets of KALE-AM and KIOK(FM), each operating in
the Tri-Cities, Washington market, for an aggregate purchase price of $1.2
million.
7
<PAGE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
On May 15, 1996, the Company acquired the assets of KISC(FM), KNFR(FM) and
KAQQ-AM, each operating in the Spokane, Washington market, from Silverado
Broadcasting Company, Inc., for an aggregate purchase price of approximately
$8.75 million (the "Silverado Acquisition"). The Company had been providing
programming and selling advertising on these stations since March 1, 1996,
pursuant to an LMA. In connection with the Silverado Acquisition, the Company
also assumed Silverado's rights and obligations under two JSAs for KNJY(FM)
and KCDA(FM) operating in the Spokane market. Pursuant to these JSAs, the
Company pays to the station owners a fee determined pursuant to formulas based
on net collected revenues.
In June 1996, the Company acquired KIBZ(FM), KKNB(FM) and KHAT-AM from Rock
Steady, Inc., each operating in Lincoln, Nebraska, for an aggregate purchase
price of $3.3 million. The Company, since January 29, 1996, had been selling
advertising on KIBZ(FM) and KKNB(FM) pursuant to a JSA. The JSA terminated
upon the acquisition.
Stations Under JSA or LMA. Pursuant to a JSA entered into in September 1995,
the Company began selling advertising on FM radio station in the Wichita
market, KEYN(FM). The JSA is for a term of 5 years or until the closing of the
Company's acquisition of KEYN(FM), whichever is earlier. The Company retains
all of the revenue it receives from the sale of advertising time less a
monthly payment to the owner.
On January 15, 1996, the Company entered into an agreement to acquire from
Pourtales Radio Partnership, for an aggregate purchase price of $22.5 million,
radio stations KVOR-AM, KSPZ(FM), KTWK-AM and KVUU(FM) each operating in the
Colorado Springs, Colorado market (collectively, the "Colorado Springs
Stations"), radio stations KEYF-AM/FM, KUDY-AM and KKZX(FM) each operating in
the Spokane, Washington market (collectively, the "Spokane Stations") and
radio stations KEGX(FM) and KTCR-AM , each operating in the Tri-Cities,
Washington market (collectively, the "Tri-Cities Stations"), and to assume an
LMA on July 1, 1996 for radio station KNLT(FM), also operating in the
Tri-Cities, Washington market (the "Pourtales Acquisition"). In connection
with the Pourtales Acquisition, the Company made a non-refundable deposit in
the form of an irrevocable stand-by letter of credit in the amount of $925,000
and made further non-refundable deposits in the aggregate amount of $2
million. The Company has also entered into an LMA to provide programming on
the Colorado Springs Stations and Spokane Stations ("Colorado Springs/Spokane
LMA") until the Pourtales Acquisition is consummated. The additional $2
million deposit is being recorded as a financing expense by the Company during
the period of the Colorado Springs/Spokane LMA. Additionally, to take
advantage of certain synergies in these markets the Company entered into a JSA
with Citadel Broadcasting Company with respect to the stations subject to the
Colorado Springs/Spokane LMA whereby Citadel sells advertising time on these
stations and shares the Broadcast Cash Flow with the Company. Further, on July
1, 1996, the Company began selling advertising on and providing programming to
the Tri-Cities Stations pursuant to an LMA until the Pourtales Acquisition is
consummated.
In March 1996, the Company and Multi-Market Radio, Inc. ("MMR"), an affiliate,
entered into an LMA pursuant to which the Company provides programming and
sells advertising on KOLL(FM), which operates in the Little Rock, Arkansas
market, pending the consummation of the acquisition of the station by the
Company. In July 1996, the Company entered into an agreement with MMR to
purchase KOLL(FM) (the "MMR Acquisition") for a purchase price of $4.1
million, based on an independent valuation. In connection with entering into
the LMA, the Company made a payment of $3.5 million to MMR which will be
credited towards the purchase price of the station.
As of September 1, 1996, the Company began selling advertising on radio
stations KKRD(FM), KRZZ(FM) and KNSS-AM operating in the Wichita, Kansas
market pursuant to a JSA with SFX Broadcasting, Inc., an affiliate; for
8
<PAGE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
a monthly fee which ranges from $75,000 per month to $100,000 per month, and
an additional monthly payment of approximately $175,000 which is subject to
adjustment based on the actual operating expenses of the stations (the
"Wichita JSA"). The agreement has a ten-year term with an option by the
Company to extend the agreement for an additional ten years upon payment of a
$1.0 million fee to SFX prior to September 1, 2003. The agreement is subject
to termination upon a "change of control" of the Company, as defined in the
agreement. The Company has received a request from the Department of Justice
to provide information regarding the agreement, and there can be no assurance
that the Department of Justice will allow the Company to continue to provide
services under the agreement.
Additional Stations to be Acquired. On February 8, 1996, the Company entered
into an agreement with Southern Skies Corporation and its affiliate Arkansas
Skies Corporation (collectively, "Southern Skies") to acquire radio stations
KZSN(FM) and KZSN-AM, and KSSN(FM) and KMVK(FM) operating in the Wichita,
Kansas and Little Rock, Arkansas markets, respectively, for an aggregate
purchase price of $24.5 million (the "Southern Skies Acquisition"). A portion
of the purchase price of the Southern Skies Acquisition equal to $.5 million
will be paid by delivery of 46,189 shares of Class A Common Stock and the
Company has granted registration rights to Southern Skies with respect to such
shares. In addition, $750,000 of such purchase price will be paid over five
years in consideration for one of the principals entering into a
non-competition agreement. The Company has provided a deposit in the form of a
letter of credit in the amount of approximately $1.2 million.
On October 17 , 1996, the Company entered into an agreement to acquire radio
stations KGOR(FM) and KFAB-AM, both serving the Omaha, Nebraska market from
American Radio Systems Corporation for $39 million (the "ARS Acquisition"). In
addition to the two stations, the Company will acquire the exclusive Muzak
franchise for the Omaha and Lincoln, Nebraska markets. The Company has
provided a deposit in the form of a letter of credit in the amount of
$2,000,000.
The Pourtales Acquisition, the MMR Acquisition, the Southern Skies Acquisition
and the ARS Acquisition are hereafter referred to as the Pending Acquisitions.
There can be no assurance that the Company will be able to consummate the
Pending Acquisitions. The Company's cash on hand, anticipated cash from
operations, and amounts which may be available under a proposed Credit
Agreement will not be sufficient to fund all of the Pending Acquisitions. Each
of these acquisitions is subject to a number of conditions, certain of which
are beyond the Company's control. They are subject to the approval of the
Federal Communications Commission. Additionally, the Federal Trade Commission
and the Department of Justice (" Antitrust Agencies") have indicated their
intention to review matters related to the concentration of ownership within
markets even when the ownership in question is permitted under the provisions
of the Telecommunication Act of 1996 (the "Recent Legislation"). While the
Company believes that each of its Pending Acquisitions does not represent or
result in an impermissible concentration of ownership, there can be no
assurance that the Antitrust Agencies will not take a contrary position which
could delay or prevent the consummation of any or all of the Pending
Acquisitions or require the Company to restructure its ownership in the
relevant market or markets.
NOTE 4 - INCOME TAXES
A provision for income taxes has been reflected in the Statements of
Operations for the three and nine month periods ended September 30, 1996, in
accordance with FAS 109, Accounting for Income Taxes.
9
<PAGE>
TRIATHLON BROADCASTING COMPANY AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
NOTE 5 - LOSS PER COMMON SHARE
Loss per common share is based upon the net loss applicable to common shares
which is net of preferred stock dividends and upon the weighted average of
common shares outstanding during the period. The conversion of securities
convertible into common stock and the exercise of stock options were not
assumed in the calculation of loss per common share because the effect would
be antidilutive.
10
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
INTRODUCTION
The following discussion of the financial condition and results of operations
of the Company should be read in conjunction with the consolidated financial
statements and related notes thereto. The following discussion contains
certain forward-looking statements that involve risks and uncertainties. The
Company's actual results could differ materially from those discussed herein.
Factors that could cause or contribute to such differences include, but are
not limited to, risks and uncertainties relating to leverage, the need for
additional funds, consummation of the Pending Acquisitions, integration of the
Company's acquisitions since it started operations, the ability of the Company
to achieve certain costs savings, the management of growth, the introduction
of new technology, changes in the regulatory environment, the popularity of
radio as a broadcasting and advertising medium and changing consumer tastes.
The Company currently owns and operates, provides programming to or sells
advertising on 23 FM and 11 AM radio stations in seven markets: Wichita,
Kansas; Lincoln, Nebraska; Omaha, Nebraska; Little Rock, Arkansas; Colorado
Springs, Colorado; Tri-Cities, Washington and Spokane, Washington. In
addition, the Company has pending acquisitions subject to FCC approval.
Assuming the consummation of each of the acquisitions, the Company will own or
operate 40 radio stations in the following seven markets:
<TABLE>
<CAPTION>
Number of
Stations
Number of Presently Under Additional
Stations LMA or JSA Number of
Presently Which Will Be Stations To Be Stations Total Number
Owned Acquired Acquired Under LMA or JSA of Stations
Market AM FM AM FM AM FM AM FM AM FM
------ -- -- -- -- -- -- -- -- -- --
<S> <C>
Wichita, Kansas.............. 2 2 -- 1 1 1 1(2) 2(2) 4 6
Lincoln, Nebraska............ 1(1) 4 -- -- -- -- -- -- 1 4
Omaha, Nebraska.............. -- 2 -- -- 1 1 -- -- 1 3
Colorado Springs, Colorado -- -- 2 2 -- -- -- -- 2 2
Tri-Cities, Washington....... 1 1 1 1 -- -- -- 1 2 3
Spokane, Washington.......... 1 2 2 2 -- -- -- 2 3 6
Little Rock, Arkansas........ -- -- -- 1 -- 2 -- -- -- 3
-- -- -- - -- - -- -- -- -
Total..................... 5 11 5 7 2 4 1 5 13 27
= == = = = = = = == ==
</TABLE>
(1) KHAT-AM is not currently operating and the Company is exploring options
for the FCC License for this station.
(2) The Company began selling advertising on KKRD(FM), KRZZ(FM) and KNSS-AM
pursuant to a JSA, effective September 1, 1996.
The performance of a radio station group, such as the Company, is customarily
measured by its ability to generate Broadcast Cash Flow. Broadcast Cash Flow
is defined as net revenues less station operating expenses and excludes
depreciation, amortization and corporate and non-cash compensation expenses.
Broadcast Cash Flow, although not calculated in accordance with generally
accepted accounting principles ("GAAP"), is widely used in the broadcasting
industry as a measure of a radio broadcasting company's operating performance.
Broadcast Cash Flow is not an alternative to operating income, net income or
net cash provided by operating activities or any other measure for determining
the Company's operating performance or liquidity which is calculated in
accordance with GAAP. The primary source of the Company's revenues is from the
sale of radio advertising time. The Company's most significant
11
<PAGE>
station operating expenses are employee salaries and commissions, programming
expenses and advertising and promotional expenses. The Company strives to
control these expenses by working closely with local station management.
The Company's revenues are primarily affected by the advertising rates charged
by radio stations. The Company's advertising rates are in large part based on
a station's ability to attract audiences in the demographic groups targeted by
its advertisers, as measured principally by Arbitron on a quarterly basis.
Because audience ratings in local markets are crucial to a station's financial
success, the Company endeavors to develop strong listener loyalty. In
addition, revenues of radio stations may be affected by many other factors
including: (i) the popularity of programming; (ii) regulatory restrictions on
types of programming or advertising (such as beer, wine, liquor and cigarette
advertising); (iii) competition within national, regional or local markets
from programming on other stations and from other media; and (iv) loss of
market share to other technologies.
The number of advertisements that can be broadcast without jeopardizing
listening levels (and the resulting ratings) is limited in part by the format
of a particular station. The Company will strive to maximize station revenue
by managing the number of commercials available for sale and adjusting prices
based upon local market conditions. In the broadcasting industry, radio
stations often utilize trade or barter agreements, which exchange advertising
time for goods or services (such as travel or lodging), instead of for cash.
The Company seeks to minimize its use of trade agreements.
The radio broadcasting industry is highly competitive and the Company's
stations are located in highly competitive markets. The financial results of
each of the Company's stations are dependent to a significant degree upon its
audience ratings and its share of the overall advertising revenue within the
station's geographic market. Each of the Company's stations competes for
audience share and advertising revenue directly with other FM and AM radio
stations, as well as with other media, within their respective markets. The
Company's audience ratings and market share are subject to change, and any
adverse change in audience rating and market share in any particular market
could have a material and adverse effect on the Company's net revenues.
Although the Company competes with other radio stations with comparable
programming formats in most of its markets, if another station in the market
were to convert its programming format to a format similar to one of the
Company's radio stations, if a new radio station were to adopt a competitive
format, or if an existing competitor were to strengthen its operations, the
Company's stations could suffer a reduction in ratings or advertising revenue
and could require increased promotional and other expenses. In addition,
certain of the Company's stations compete, and in the future other stations
may compete, with groups of stations in a market operated by a single
operator. As a result of the Telecommunications Act of 1996 (the "Recent
Legislation"), the radio broadcasting industry has become increasingly
consolidated, resulting in the existence of radio broadcasting companies which
are significantly larger, with greater financial resources, than the Company.
Furthermore, the Recent Legislation will permit other radio broadcasting
companies to enter the markets in which the Company operates or may operate in
the future. Although the Company believes that each of its stations is able to
compete effectively in its market, there can be no assurance that any of the
Company's stations will be able to maintain or increase current audience
ratings and advertising revenue market share. The Company's stations also
compete with other advertising media such as newspapers, television,
magazines, billboard advertising, transit advertising and direct mail
advertising. Radio broadcasting is also subject to competition from new media
technologies that are being developed or introduced, such as the delivery of
audio programming by cable television systems or the introduction of digital
audio broadcasting. The Company cannot predict the effect, if any of these new
technologies may have on the radio broadcasting industry.
The Company's advertising contracts are generally short-term. The Company
generates most of its revenue from local advertising, which is sold primarily
by a station's sales staff. To generate national advertising sales, the
Company engages independent advertising sales representatives that specialize
in national sales for each of its stations.
12
<PAGE>
The Company's revenues vary throughout the year. As is typical in the radio
broadcasting industry, the Company's fourth fiscal quarter (first calendar
quarter) generally produces the lowest revenues for the year and the third
fiscal quarter (fourth calendar quarter) generally produces the highest
revenues for the year. The Company's operating results in any period may be
affected by the incurrence of advertising and promotion expenses that do not
necessarily produce commensurate revenues until the impact of the advertising
and promotion is realized in future periods.
The Company may experience significant charges to results of operations as a
results of charges anticipated high levels of depreciation and amortization
arising from the acquisitions as well as interest expense arising under the
Proposed Credit Agreement (as defined herein) and any future borrowings
resulting from station acquisitions and financing therefor.
RESULTS OF OPERATIONS
The Company did not commence radio broadcast operations until September 13,
1995. The same station pro forma comparisons described below compare the
Company's results of operations for the stations owned and operated at
September 30, 1996 as if such stations were owned for all periods discussed.
THREE MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO THREE MONTHS
ENDED SEPTEMBER 30, 1995
Net revenues (total revenues less agency commissions) for the three months
ended September 30, 1996 were $5,424,000 versus $135,000 for the prior year
period. On a same station basis, pro forma net revenues increased 3.4 % to
$7,218,000 for the 1996 period from $6,984,000 for the three months ended
September 30, 1995. The increase was attributable to increased advertising
revenues in the Spokane and Tri-Cities, Washington and Omaha, Nebraska
markets, the full impact of which was limited due to format changes at two
stations in these markets.
Station operating expenses for the three months ended September 30, 1996 was
$3,795,000 versus $119,000 for the three months ended September 30, 1995. On a
same station basis, pro forma station operating expenses increased 1.7% to
$5,405,000 for 1996 from $5,313,000 for the three month period ended September
30,1995. The benefits of the Company's cost reduction programs and
efficiencies of combined operations in the markets served have not been fully
implemented and were offset by increased promotional expense, begun in the
first quarter of 1996, related to station format changes in the Omaha and
Tri-Cities markets. In addition, the pro forma station operating expenses for
the 1996 quarter includes an adjustment arising from the sale of advertising
time in connection with JSA agreements for certain stations in Spokane and
Colorado Springs markets.
Broadcast Cash Flow for the three month period ended September 30, 1996 was
$1,629,000 with a Broadcast Cash Flow Margin (broadcast cash flow as a
percentage of net revenues) of 30 % versus Broadcast Cash Flow of $16,000 and
Broadcast Cash Flow Margin of 11.9% for the prior year three month period. On
a same station basis, pro forma Broadcast Cash Flow increased 8.5% to
$1,813,000 for the three month period ended September 30, 1996 from $1,671,000
for the 1995 period principally as a result of the revenue increase mentioned
above.
Depreciation and amortization expenses for the three month period ended
September 30, 1996 was $427,000 versus $36,000 for 1995 period. The increase
was attributable to the acquisitions since September 30, 1995.
Corporate expenses consisting primarily of officer's salary, professional fees
and expenses and corporate office expenses for the 1996 three month period
were $311,000 as compared to $24,000 in 1995. The increase in corporate
expense are principally the result of the increased number of stations owned,
operated or served as well as operating for the entire quarter in 1996.
13
<PAGE>
The Company recorded deferred compensation expense of $113,000 in 1996 and
$81,000 in 1995. This recurring expense, not currently affecting cash flow, is
related to stock options and stock appreciation rights granted to officers,
directors and advisors in the prior year.
Operating income (net revenues less total operating expenses) for the three
month period ended September 30, 1996 was $778,000 as compared to an operating
loss of $125,000 in the comparable prior year period. The improvement in
operating income results form the inclusion of a full quarter's results of
operations in the 1996 period for stations acquired during the 1995 period and
the additional results of operations, for applicable periods, for stations
acquired subsequent to September 30, 1995.
Net interest expense for the 1996 period was $418,000, principally financing
costs as a result of delays in closing on certain acquisitions, net of
interest income of $189,000 from the Company's investment of cash which will
be used for the Pending Acquisitions.
The provision for income taxes is $54,000 for the three month period ended
September 30, 1996. The Company did not provide for taxes in the prior year
period since a loss was anticipated for the first fiscal year.
Net income for the three months ended September 30, 1996 was $306,000 as
compared to a net loss of $130,000 in the prior year period. Net loss
applicable to common stock for this period was $1,072,000 after the provision
for dividends of $1,378,000 for preferred stock issued in March and April
1996.
SIX MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO SIX MONTHS
ENDED SEPTEMBER 30, 1995
Net revenues for the six month period ended September 30, 1996 were $9,950,000
versus $135,000 for the prior year period. On a same station basis, pro forma
net revenues decreased 1.3 % to $14,137,000 for the 1996 period from
$14,329,000 for the six month period ended September 30, 1995. The decrease
was attributable to decreased advertising at certain stations as a result of
adjustments to the programming format instituted by the Company, principally
during the first quarter 1996. The format changes were instituted to better
position the stations for future growth.
Station operating expenses for the six months ended September 30, 1996 was
$7,028,000 versus $119,000 in the prior year period. On a same station basis,
pro forma station operating expenses decreased 1.7% to $10,879,000 for 1996
from $11,054,000 for the six month period ended September 30,1995. The
benefits of the Company's cost reduction programs and efficiencies of combined
operations in the markets served which have not been fully implemented in all
markets were partially offset by increased promotional expense related to
station format changes in the Lincoln, Omaha and Tri-Cities markets and the
pro forma adjustments in connection with the JSA agreements in Colorado
Springs and Spokane.
Broadcast Cash Flow for the six month period ended September 30, 1996 was
$2,922,000 with a Broadcast Cash Flow Margin of 29.4% versus Broadcast Cash
Flow of $16,000 and Broadcast Cash Flow Margin of 11.9% for the prior year six
month period. On a same station basis, pro forma Broadcast Cash Flow decreased
.5% to $3,258,044 for the six month period ended September 30, 1996 from
$3,275,000 for the 1995 period, principally, as a result of the revenue
decreases related to the station format changes mentioned above.
Depreciation and amortization expenses for the six month period ended
September 30, 1996 was $760,000 versus $36,000 for 1995 period. The increase
was principally attributable to the acquisitions since September 30, 1995.
14
<PAGE>
Corporate expenses for the 1996 six month period were $802,000 as compared to
$24,000 in 1995. The increase is corporate expense is directly attributable to
six months of actual operations in 1996 versus a partial month for the prior
year.
The Company recorded deferred compensation expense of $226,000 in 1996 and
$81,000 in 1995. This recurring expense, not currently affecting cash flow, is
related to stock options and stock appreciation rights granted to officers,
directors and advisors principally in October 1995.
Operating income for the six month period ended September 30, 1996 was
$1,134,000 as compared to an operating loss of $125,000 in the comparable
prior year period. The improvement in operating income results from the
inclusion of the results of operations for six months in the 1996 period for
stations acquired during the 1995 period and the additional results of
operations, for applicable periods, for stations acquired subsequent to
September 30, 1995.
Net interest expense for the 1996 period was $867,000, principally financing
costs as a result of delays in closing on certain acquisitions, net of
interest income of $425,000 versus $12,000 for the six months ended September
30, 1995.
The provision for income taxes is $54,000 for the six month period ended
September 30, 1996. No provision was required in the 1995 period.
Net income for the six month period ended September 30, 1996 was $213,000 as
compared to a net loss of $137,000 in the prior year period. Net loss
applicable to common stock for this period was $2,511,000 after the provision
for dividends of $2,724,000.
LIQUIDITY AND CAPITAL RESOURCES
Cash used in operating activities for the six months ended September 30, 1996
totaled $3,059,000. Cash used for investing activities for the period of
$25,294,000 related to acquisitions, capital expenditures and deposits and
other costs of Pending Acquisitions. Cash provided by financing activities for
the Company totaled $4,291,000 and related primarily to the proceeds of the
over-allotment from the Preferred Stock Offering reduced by the payments of
dividends to the preferred stockholders.
The Company's principal source of funds has been the net proceeds from the
Initial Public Offering of approximately $12,900,000, a $9,000,000 credit
agreement from AT&T Commercial Finance Corporation (the "Credit Agreement")
and net proceeds from the Preferred Stock Offering, of approximately
$56,400,000. The cost of the acquisitions completed through September 30, 1996
of approximately $46,529,000, including deposits in connection with the
Pending Acquisitions, were financed with the proceeds from the Company's
Initial Public Offering and the Preferred Stock Offering. Amounts borrowed
under the Credit Agreement for acquisitions were also repaid with proceeds
from the Company's Initial Public Offering and the Preferred Stock Offering.
As of November 12, 1996, the Company has entered into agreements to consummate
the Pending Acquisitions pursuant to which it will acquire eleven FM and seven
AM stations for an aggregate purchase price of $90,100,000. In order to
consummate the Pending Acquisitions, the Company must seek additional funding
sources as amounts available under the Proposed Credit Agreement (see below)
and cash on hand and from operations will not be sufficient to fund the
purchase price of all of the Pending Acquisitions.
The Company has received a commitment letter from AT&T for a proposed credit
agreement (the "Proposed Credit Agreement") of up to $40,000,000 which will be
used to fund a portion of the purchase price of the Pending Acquisitions.
Pursuant to the proposal, the amount of funding available under the Proposed
Credit Agreement will be limited to an amount, which equals 5.5 times
historical 12-month trailing Broadcast Cash Flow. The calculation
15
<PAGE>
of Broadcast Cash Flow is made on a pro forma basis which includes the
trailing 12 month Broadcast Cash Flow of the stations currently owned and/or
operated by the Company and the stations subject to the Pending Acquisitions.
There can be no assurance that the Company will be able to enter into the
Proposed Credit Agreement or that the stations will achieve the requisite cash
flow levels required thereunder to obtain the financing necessary to fund the
Pending Acquisitions. Further, the total available under the Proposed Credit
Agreement, together with cash on hand, will not be sufficient to fund all of
the Pending Acquisitions. In the event the Company does not enter into the
Proposed Credit Agreement and/or otherwise obtains additional financing, there
can be no assurance that the Company will be able to consummate the Pending
Acquisitions and, thus, the Company may lose all, or part of the deposits
totaling $9,650,000 made in connection with the Pending Acquisitions.
The Company believes that cash flows from operations, borrowings under the
Proposed Credit Agreement and existing funds will be sufficient to meet the
Company's current operating cash requirements. However, the Company will
require additional financing to fund all of its Pending Acquisitions. In
addition, as anticipated, current dividend payments on the Preferred Stock
have been and will be made out of the remaining proceeds of the Preferred
Stock Offering and/or the Proposed Credit Agreement. In order to fund future
dividend payments from operating income, the Company will have to improve the
operating results of its current radio stations and those to be acquired in
the Pending Acquisitions. The Company's ability to make these improvements
will be subject to prevailing economic conditions and to legal, financial,
business, regulatory, industry and other factors, many of which are beyond the
Company's control.
In addition to the borrowings under the Proposed Credit Agreement, the Company
will be required to incur additional indebtedness or raise additional equity
financing in connection with the Pending Acquisitions. Further the Company
will also need to incur or raise additional financing when the balloon payment
is due in 2002 under the Proposed Credit Agreement. There can be no assurance
that the Company will be able to incur such additional indebtedness or raise
additional equity on terms acceptable to the Company. The Company's ability to
consummate the Pending Acquisitions and incur additional indebtedness will
also be restricted by the Proposed Credit Agreement. Without additional
sources of funding, it is unlikely that the Company will be able to implement
its acquisition strategy and will lose all or part of the deposits made in
connection with its Pending Acquisitions.
16
<PAGE>
PART II - OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
At the Company's Annual Meeting of Stockholders, held on November 13, 1996,
the following proposals were approved:
PROPOSAL 1 - ELECTION OF DIRECTORS BY THE CLASS A COMMON STOCK,
THE CLASS B COMMON STOCK AND THE DEPOSITARY SHARES
<TABLE>
<CAPTION>
Class A Common Class B Common Depositary
Stock Stock Shares
For Withheld For Withheld For Withheld
--- -------- --- -------- --- --------
<S> <C> <C> <C> <C> <C> <C>
John D. Miller 2,836,291 28,900 2,448,900 - 3,371,000 480,000
Norman Feuer 2,836,291 28,900 2,448,900 - 3,369,400 481,600
Dennis R. Ciapura 2,836,291 28,900 2,448,900 - 3,369,400 481,600
</TABLE>
- Election of Directors by the Class A Common Stock
and the Depositary Shares
Class A Common Depositary
Stock Shares
For Withheld For Withheld
--- -------- --- --------
Frank E. Barnes III 2,835,791 29,400 3,369,160 481,840
Jeffrey W. Leiderman 2,836,291 28,900 3,370,360 480,640
PROPOSAL 2 - AMENDMENT TO THE COMPANY'S AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
For Against Abstain
--- -------- -------
Class A Common 852,749 67,700 12,240
Stock
Class B Common 2,448,900 -
- -
Stock
Depositary Shares 1,903,712 2,012,704 4,834,972
PROPOSAL 3 - APPROVAL OF THE COMPANY'S 1996 STOCK OPTION PLAN
For Against Abstain
--- -------- -------
Class A Common 828,822 121,920 24,260
Stock
Class B Common 2,448,900 - -
Stock
Depositary Shares 2,260,792 1,655,464 1,600
17
<PAGE>
PROPOSAL 4 - RATIFICATION OF ERNST & YOUNG LLP AS INDEPENDENT
AUDITORS FOR THE FISCAL YEAR ENDING MARCH 31, 1997
For Against Abstain
--- -------- -------
Class A Common 2,838,016 20,500 7,900
Stock
Class B Common 2,448,900 - -
Stock
Depositary Shares 4,018,120 2,400 -
18
ITEM 5. OTHER INFORMATION
On November 13, 1996, the Board of Directors appointed Jan E. Chason as Chief
Financial Officer of the Company. Since June 1996, Mr. Chason has been serving
as a consultant to Sillerman Communications Management Corporation. Mr. Chason
is also the principle in JEC Consulting Associates which he began in October
1994. From 1982 until September 30, 1994, Mr. Chason was a Partner in the firm
of Ernst & Young LLP.
19
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
The Company filed Form 8-K/A on August 27, 1996.
Exhibits
10.1 Asset Purchase Agreement dated as of October 17, 1996 between
Triathlon Broadcasting of Omaha, Inc. and
American Radio Systems Corporation.
10.2 Asset Purchase Agreement dated as of July 15, 1996
between Triathlon Broadcasting of Little Rock, Inc. and
Southern Starr of Arkansas, Inc.
27 Financial Data Schedule
20
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the registrant has
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
TRIATHLON BROADCASTING COMPANY
By: /s/Norman Feuer
---------------------------
Norman Feuer
Chief Executive Officer
By: /s/Jan E. Chason
---------------------------
Jan E. Chason
Chief Financial Officer
Dated: November 14, 1996
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the ____ day of October, 1996 by and between AMERICAN RADIO SYSTEMS
CORPORATION, a Delaware corporation ("Seller"), and TRIATHLON BROADCASTING OF
OMAHA, INC., a Delaware corporation ("Buyer"), under the following
circumstances;
WHEREAS, Seller owns and operates radio stations KFAB-AM and KGOR(FM)
licensed to Omaha, Nebraska (collectively, the "Stations"), pursuant to
licenses issued by the Federal Communications Commission (the "FCC"); and
WHEREAS, Seller desires to sell and Buyer desires to purchase certain
assets and assume certain liabilities associated with the ownership and
operation of the Stations, all on the terms and subject to the conditions set
forth herein; and
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
1.1 Transfer of Assets. On the Closing Date, Seller shall sell,
assign, transfer and convey to Buyer, and Buyer shall purchase and assume from
Seller, all of the assets, properties, interests and rights of Seller of
whatsoever kind and nature, real and personal, tangible and intangible, owned
or leased by the Seller as the case may be, which are used or held for use by
or relate directly to the Stations as the same shall exist on the Closing Date
(the "Station Assets"), including but not limited
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<PAGE>
to the following (but excluding the assets specified in Section 1.2 hereof):
1.1.1 all of Seller's rights in and to the licenses, permits
and other authorizations issued to Seller by any governmental authority and
used directly in, or relating directly to, the conduct of the business and
operations of the Stations, including those issued by the FCC (the latter
hereafter referred to as the "Station Licenses") and as described more fully in
Section 7.4, along with renewals or modifications of such items between the
date hereof and the Closing Date as well as all of Seller's rights in and to
the call letters "KFAB-AM and KGOR (FM)";
1.1.2 all equipment, office furniture and fixtures, office
materials and supplies, inventory, spare parts and other tangible personal
property of every kind and description, owned, leased or held by Seller and
used in the conduct of the business and operations of the Stations, and which
are described more fully in Section 7.7, together with any replacements of
equal quality thereof and additions thereto, made between the date hereof and
the Closing Date, and less any retirements or dispositions thereof made between
the date hereof and the Closing Date in the ordinary course of business and
consistent with past practices of the Seller;
1.1.3 all of Seller's rights in and under such contracts,
agreements or leases, written or oral, relating directly or exclusively to the
conduct of the Stations ("Contracts"), and which are described more fully in
Sections 7.7, 7.8 and 7.9, together with all Contracts entered into or acquired
by Seller between the date hereof and the Closing Date in the ordinary course
of business and consistent with the terms of this Agreement;
1.1.4 all of Seller's rights in any programs and programming
material of whatever form or nature owned by Seller and used directly and
exclusively in, or relating directly and exclusively to, the Stations;
1.1.5 all of Seller's rights in and to the trademarks, trade
names, service marks, franchises, copyrights, including registrations and
applications for registration of any of them,
[NYCORP] 35907.1
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<PAGE>
jingles, logos and slogans or licenses to use same owned or held by it and used
directly and exclusively in, or relating directly and exclusively to, the
conduct of the business and operations of the Stations, as described more fully
in Section 7.12, together with any associated good will and any additions
thereto between the date hereof and the Closing Date;
1.1.6 all of Seller's rights in and to the files, records,
and books of account of the Stations including, without limitation, programming
information and studies, technical information and engineering data, news and
advertising studies or consulting reports, marketing and demographic data,
sales correspondence, lists of advertisers, promotional materials, credit and
sales reports and filings with the FCC, executed copies of all written
Contracts to be assigned hereunder, logs and commercially available software
programs to the extent the same are transferable by Seller; provided, however,
that Seller shall for a period of three (3) years following the Closing Date
have access to all of the foregoing for audit, inspection and duplication by
Seller or its designees, at Seller's expense, upon reasonable prior notice
during normal business hours;
1.1.7 all of Seller's rights under manufacturers' and
vendors' warranties relating to items included in the Station Assets and all
similar rights against third parties relating to items included in the Station
Assets; and
The Station Assets shall be transferred to Buyer free and clear of all
debts, security interests, mortgages, trusts, claims, pledges, conditional
sales agreements or other liens, liabilities and encumbrances whatsoever, other
than informational filings made by equipment lessors under the Uniform
Commercial Code.
1.2 Excluded Assets. Notwithstanding anything to the contrary
contained herein, it is expressly understood and agreed that the Station Assets
shall not include the following assets along with all rights, title and
interest therein which shall be referred to as the "Excluded Assets":
1.2.1 all cash, cash equivalents or similar type investments of
Seller, such as
[NYCORP] 35907.1
3
<PAGE>
certificates of deposit, Treasury bills and other marketable
securities on hand and/or in banks;
1.2.2 all tangible and intangible personal property disposed
of or consumed in the ordinary course of business between the date of this
Agreement and the Closing Date, or as permitted under the terms hereof;
1.2.3 all Contracts that have terminated or expired prior to
the Closing Date in the ordinary course of business or as permitted hereunder;
1.2.4 Seller's corporate seal, minute books, charter
documents, corporate stock record books and such other books and records as
pertain to the organization, existence or share capitalization of Seller and
duplicate copies of such records as are necessary to enable Seller to file its
tax returns and reports as well as any other records or materials relating to
Seller generally and not involving specific aspects of the Stations's
operation;
1.2.5 Contracts of insurance and all insurance proceeds or
claims made by Seller relating to property or equipment repaired, replaced or
restored by Seller prior to the Closing Date;
1.2.6 any and all other claims made by Seller with respect to
transactions prior to the Closing Date and the proceeds thereof to the extent
Seller has expended funds or incurred a loss relating to same;
1.2.7 all pension, profit sharing or cash or deferred
(Section 401(k)) plans and trusts and the assets thereof and any other employee
benefit plan or arrangement and the assets thereof, if any, maintained by
Seller or its parent organization; and
1.2.8 any books and records relating to any of the foregoing.
1.2.9 all accounts receivable or notes receivable of Seller
for services performed or
[NYCORP] 35907.1
4
<PAGE>
provided by Seller prior to the Closing Date;
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1 Assumption of Obligations. Subject to the provisions of this
Section 2.1, Section 2.2 and Section 3.4, on the Closing Date, Buyer shall only
assume and undertake to pay, satisfy or discharge the liabilities, obligations
and commitments of Seller arising under (i) the Station Licenses and the
Contracts described more fully in Sections 7.7, 7.8 and 7.9; (ii) all other
Contracts of Seller arising in the ordinary course of business and consistent
with past practices between the date hereof and the Closing Date, including,
but not limited to, all contracts for the sale of advertising time for cash
arising in the ordinary course of business of Seller or (to the extent set
forth in Sections 3.4.1 and Sections 3.4.2) for consideration other than cash
such as merchandise, services or promotional consideration ("Trade Agreements")
as the same may exist or arise in the ordinary course of business; and (iii)
any other Contracts entered into between the date hereof and the Closing Date
which Buyer expressly agrees in writing to assume. All of the foregoing
liabilities and obligations shall be referred to herein collectively as the
"Assumed Liabilities".
2.2 Limitation. Except as set forth in Section 2.1 hereof, Buyer
expressly does not, and shall not, assume or be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated hereby, any
liabilities, obligations or commitments of Seller of any nature whatsoever.
Without limiting the generality of the foregoing, except as set forth in
Section 2.1, Buyer shall not assume or be liable for any liability or
obligation of Seller arising out of any contract of employment, collective
bargaining agreement, insurance, pension, retirement, deferred compensation,
incentive bonus or profit sharing or employee benefit plan or trust, or any
judgment, litigation, proceeding or claim by any person or entity relating to
the business or operation of the Stations prior to the Closing Date, whether or
not such judgment, litigation, proceeding or claim is pending, threatened or
asserted before, on or after the Closing Date.
[NYCORP] 35907.1
5
<PAGE>
ARTICLE 3
CONSIDERATION
3.1 Purchase Price. The aggregate consideration (the "Purchase Price")
for the transfer of the Station Assets from the Seller to the Buyer shall be
Thirty-Nine Million Dollars ($39,000,000), plus the assumption at Closing of
the Assumed Liabilities.
3.2 Payment. Buyer shall pay to Seller the Purchase Price at Closing
by wire transfer in immediately available funds of the sum of to a bank
designated in writing by Seller.
3.3 Escrow Account. Buyer shall deposit an irrevocable stand-by letter
of credit in the sum of Two Million Dollars ($2,000,000) into an escrow account
(the "Escrow Account") with Media Venture Partners, to be held in escrow in
accordance with the terms of an escrow agreement (the "Escrow Agreement")
between the parties substantially in the form of Exhibit A hereto.
3.4 Proration of Revenue and Expenses.
3.4.1 Except as otherwise provided herein, all expenses
incurred and all revenue earned arising from the conduct of the business and
operations of the Stations shall be prorated between Buyer and Seller in
accordance with generally accepted accounting principles as of 11:59 p.m.,
local time, on the date immediately preceding the Closing Date. Such prorations
shall include, without limitation, all ad valorem, real estate and other
property taxes (but excluding taxes arising by reason of the transfer of the
Station Assets as contemplated hereby, which shall be paid as set forth in
Article 13 of this Agreement), business and license fees, music and other
license fees (including any retroactive adjustments thereof), wages and
salaries of employees, including accruals up to the Closing Date for bonuses,
commissions, vacations and sick pay, and related payroll taxes, utility
expenses, time sales agreements, contracts for the sale of advertising for
consideration other than cash ("Trade Agreements") to the extent provided in
Section 3.4.2 hereof, rents and similar prepaid and deferred items attributable
to the ownership and operation of the Stations. Real estate
[NYCORP] 35907.1
6
<PAGE>
taxes shall be apportioned on the basis of taxes assessed for the preceding
year, with a reapportionment as soon as the new tax rate and valuation can be
ascertained.
3.4.2 Buyer and Seller agree that Buyer shall only assume and
be liable for performing the Stations' post-closing obligations under Trade
Agreements in an amount equal to the Base Trade Component (as defined below).
To the extent that the aggregate value by which the Stations' post-closing
obligations under Trade Agreements for the sale of advertising time exceeds the
aggregate value of the goods, services or other items to be received by the
Stations after the Closing by more than the Base Trade Component (the "Excess
Trade Balance"), the Seller shall remain liable for the amount of the Excess
Trade Balance. For purposes of this Agreement, the "Base Trade Component" shall
be TWENTY THOUSAND DOLLARS ($20,000.00).
3.4.3 The prorations and adjustments contemplated by this
Section, to the extent practicable, shall be made on the Closing Date. As to
those prorations and adjustments not capable of being ascertained on the
Closing Date, an adjustment and proration shall be made within ninety (90)
calendar days of the Closing Date.
3.4.4 In the event of any disputes between the parties as to
such adjustments, the amounts not in dispute shall nonetheless be paid at the
time provided in Section 3.4.3 and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the parties, and
the fees and expenses of such accountant shall be paid one-half by Seller and
one-half by Buyer.
ARTICLE 4
CLOSING
4.1 Closing. Except as otherwise mutually agreed upon by Seller and
Buyer, the consummation of the transactions contemplated herein (the "Closing")
shall occur within ten (10) business days following the date on which the last
of the FCC Consents (as defined in Section 5.1) shall have become a Final Order
(as defined below), unless Buyer in its sole discretion shall have
[NYCORP] 35907.1
7
<PAGE>
waived the condition that such consent shall have become final (the "Closing
Date"). For purposes of this Agreement, the FCC Consents shall be deemed to be
a Final Order when (i) they have not been vacated, reversed, stayed, set aside,
annulled or suspended; (ii) they are not the subject of any pending timely
appeal, request for stay or petition for rehearing, reconsideration or review
by any party or by the FCC on its own motion; and (iii) they are actions by the
FCC as to which the time for filing any such appeal, request, petition or
similar document or for the reconsideration or review by the FCC on its own
motion under the Communications Act of 1934 and the rules and regulations of
the FCC has expired. The Closing shall be held at such offices as shall be
specified by Buyer in New York City.
ARTICLE 5
GOVERNMENTAL CONSENTS
5.1 FCC Consents. It is specifically understood and agreed by Buyer
and Seller that the Closing and the assignment of the Station Licenses and the
transfer of the Station Assets is expressly conditioned on and is subject to
the prior consent and approval of the FCC and any reasonably acceptable
conditions imposed in such approval, which conditions are not deemed, in
Buyer's sole judgement, material or adverse to Buyer's interest in the Station
Assets or, in the Seller's sole judgement, materially adverse to the Seller
(the "FCC Consents").
5.2 FCC Application. Seller and Buyer shall hereafter file with the
FCC the requisite applications for assignment of the Station Licenses ("FCC
Applications") from Seller to Buyer within ten (10) business days following the
date of this Agreement. Buyer shall have the right to make such amendments to
the FCC Applications as shall be necessary to reflect changes that may occur in
the structure of Buyer so long as such amendments do not materially delay the
processing time of such FCC Applications. Thereafter, Seller and Buyer shall
prosecute the FCC Applications with all reasonable diligence and otherwise use
their best efforts to obtain the grant of the FCC Applications as expeditiously
as practicable (but neither Seller nor Buyer shall have any obligation to
satisfy complainants or the FCC by taking any steps which would have a material
adverse effect
[NYCORP] 35907.1
8
<PAGE>
upon Seller or Buyer or upon any affiliated entity). If the FCC Consents impose
any condition on either party hereto, such party shall use its best efforts to
comply with such condition; provided, however, that neither party shall be
required hereunder to comply with any condition that would have a material
adverse effect upon it or any affiliated entity. If reconsideration or judicial
review is sought with respect to the FCC Consents, the party affected shall
vigorously oppose such efforts for reconsideration or judicial review;
provided, however, that nothing herein shall be construed to limit either
party's right to terminate this Agreement pursuant to Article 17 hereof.
5.3 HSR Act. Within seven (7) business days from the date hereof,
Seller and Buyer shall make any filings as may be required under the HSR Act.
Each party shall furnish to the other party such necessary information and
reasonable assistance as such party shall request in connection with its
preparation of any necessary filings under the HSR Act. Each party shall keep
the other party informed of the status of any inquiries made of such party by
the Federal Trade Commission or any other Antitrust Division of the U.S.
Department of Justice or any other governmental agency or authority with
respect to this Agreement or the transactions contemplated hereby. The parties
hereby acknowledge that in making such filings, the parties will be relying on
information provided by the other party without independent investigation. The
Seller and the Buyer agree to request early termination of the waiting periods
under the HSR Act.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to
Seller, each of which is true and correct on the date hereof, shall remain true
and correct through and including the Closing Date, shall be unaffected by any
notice to Seller other than in the Disclosure Schedule (as defined herein) and
shall survive the Closing to the extent provided in Section 16.4.
6.1 Organization and Standing. Buyer is a corporation duly
organized, validly existing
and in good standing under the laws of the State of Delaware, and as of the
Closing Date Buyer shall
[NYCORP] 35907.1
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be duly qualified to do business and be in good standing in the
State of Nebraska.
6.2 Authorization and Binding Obligation. Buyer has all necessary
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Station Assets and to
carry on the business of the Stations as they are now being conducted, and
Buyer's execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Buyer and this Agreement constitutes, and the other agreements to
be executed in connection herewith will constitute, the valid and binding
obligation of Buyer, enforceable in accordance with their terms, except as
limited by laws affecting creditors' rights or equitable principles generally.
6.3 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 hereof with respect to governmental consents, the
execution, delivery and performance of this Agreement by Buyer: (a) does not
require the consent of any third party; (b) will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which Buyer is a party; and (c) will not, either
alone or with the giving of notice or the passage of time, or both, conflict
with, constitute grounds for termination of or result in a breach of the terms,
conditions or provisions of, or constitute a default under, any agreement,
instrument, license or permit to which Buyer is now subject.
6.4 Litigation and Compliance with Law. There is no litigation,
administrative, arbitration or other proceeding, or petition, complaint or
investigation before any court or governmental body, pending against Buyer or
any of its principals that would adversely affect Buyer's ability to perform
its obligations pursuant to this Agreement or the agreements to be executed in
connection herewith. There is no violation of any law, regulation or ordinance
or any other requirement of any governmental body or court which would have a
material adverse effect on Buyer or its ability to perform its obligations
pursuant to this Agreement or the agreements to be executed in connection
herewith.
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6.5 FCC Qualification. To the best of Buyer's knowledge, Buyer is a
qualified assignee of the Station Licenses under the rules and regulations of
the FCC and the Communications Act of 1934 as amended.
6.6 Full Disclosure. To best of Buyer's knowledge, no representation
or warranty made by Buyer herein nor any certificate, document or other
instrument furnished or to be furnished by Buyer pursuant hereto (a) contains
or will contain any untrue statement of a material fact made intentionally or
in bad faith, or (b) intentionally or in bad faith omits or will omit to state
any material fact known to Buyer and required to make the statements herein or
therein not misleading.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Buyer, each of which is true and correct on the date hereof, shall remain true
and correct to and including the Closing Date, shall be unaffected by any
notice to Buyer other than in the Disclosure Schedule (as defined herein) and
shall survive the Closing to the extent provided in Section 16.4. Such
representations and warranties are subject to, and qualified by, any fact or
facts disclosed in the appropriate section of the separate Disclosure Schedule
which is hereby made a part of this Agreement (the "Disclosure Schedule").
7.1 Organization and Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
is duly qualified to do business in the State Nebraska and has the corporate
power and authority to own, lease and operate the Station Assets and to carry
on the business of the Stations as now being conducted and as proposed to be
conducted by Seller between the date hereof and the Closing Date.
7.2 Authorization and Binding Obligation. Seller has the corporate
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and Seller's
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execution, delivery and performance of this Agreement, and the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on its part. This Agreement has been duly executed and
delivered by Seller and this Agreement and the agreements to be executed in
connection herewith will constitute the valid and binding obligation of Seller
enforceable in accordance with their terms, except as limited by laws affecting
the enforcement of creditor's rights or equitable principles generally.
7.3 Absence of Conflicting Agreements or Required Consents. Except as
set forth in Article 5 hereof with respect to governmental consents and as set
forth in Sections 7.7, 7.8 or 7.9 of the Disclosure Schedule with respect to
consents required in connection with the assignment of certain Contracts, the
execution, delivery and performance of this Agreement by Seller: (a) does not
require the consent of any third party; (b) will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which Seller is a party or by which it or the Station
Assets are bound; (c) will not, either alone or with the giving of notice or
the passage of time, or both, conflict with, constitute grounds for termination
of or result in a breach of the terms, conditions or provisions of, or
constitute a default under, any Contract, agreement, instrument, license or
permit to which Seller or the Station Assets is now subject; and (d) will not
result in the creation of any lien, charge or encumbrance on any of the Station
Assets, except to the extent that any such matter or matters referred to in sub
parts (a) through (d) would not in the aggregate have a material adverse effect
on the Buyer.
7.4 Government Authorizations. Section 7.4 of the Disclosure Schedule
contains a true and complete list of the Station Licenses and other material
licenses, permits or other authorizations from governmental and regulatory
authorities which are required for the lawful conduct of the business and
operations of the Stations in the manner and to the full extent they are
presently conducted. Seller is the authorized legal holder of the Station
Licenses and other licenses, permits and authorizations listed in said Section
7.4, none of which is subject to any restrictions or condition which would
limit in any respect the full operation of the Stations as now operated.
[NYCORP] 35907.1
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Except as set forth in said Section 7.4 of the Disclosure Schedule, there are
no applications, complaints or proceedings pending or, to the best of Seller's
knowledge, threatened as of the date hereof before the FCC relating to the
business or operations of the Stations other than applications, complaints or
proceedings which generally affect the broadcasting industry. Seller has
delivered to Buyer true and complete copies of the Station Licenses, including
any and all amendments and other modifications thereto. The Station Licenses
listed in said Section 7.4 are in good standing, are in full force and effect
and are unimpaired by any act or omission of Seller or its officers, directors
or employees; and the operation of the Stations is materially in accordance
with the Station Licenses and the underlying construction permits. No
proceedings are pending or, to the knowledge of Seller, are threatened with
respect to the Station Licenses which may result in the revocation,
modification, non-renewal or suspension of any of the Station Licenses, the
denial of any pending applications, the issuance of any cease and desist order,
the imposition of any administrative actions by the FCC with respect to the
Station Licenses or which may affect Buyer's ability to continue to operate the
Stations as they are currently operated. Seller has no reason to believe that
the Station Licenses will not be renewed in their ordinary course. All material
reports, forms and statements required to be filed by Seller with the FCC with
respect to the Stations since the grant of the last renewal of the Station
Licenses have been filed and are substantially complete and accurate. To the
best knowledge of Seller, there are no facts which, under the Communications
Act of 1934, as amended, or the existing Rules and Regulations of the FCC,
would disqualify Seller as an assignor of the Station Licenses.
7.5 Compliance with FCC Regulations. The operation of the Stations and
all of the Station Assets are in compliance in all material respects with (i)
all material applicable engineering standards required to be met under
applicable FCC rules, and (ii) all other applicable rules, regulations,
requirements and policies of the FCC, including, but not limited to, ANSI
Radiation Standards C95.1 - 1982 to the extent required to be met under
applicable FCC rules and regulations; and there are no existing claims known to
Seller to the contrary.
7.6 Taxes. Except as set forth on Section 7.6 of the Disclosure
Schedule, Seller has filed
[NYCORP] 35907.1
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all federal, state, local and foreign income, franchise, sales, use, property,
excise, payroll and other tax returns required by law and has paid in full all
taxes, estimated taxes, interest, assessments, and penalties due and payable in
connection with its operation of the Stations. All returns and forms which have
been filed in connection with Seller's operation of the Stations have been true
and correct in all material respects and no tax or other payment in a material
amount other than as shown on such returns and forms are required to be paid
and have been paid by Seller. There are no present disputes as to taxes of any
nature payable by Seller which in any event could materially adversely affect
any of the Station Assets or the operation of the Stations.
7.7 Personal Property.
7.7.1 Section 7.7 of the Disclosure Schedule contains a list
of all material tangible personal property and assets owned and leased by the
Seller and used primarily or exclusively in the conduct of the business and
operations of the Stations. Except as may be subject to lease agreements of the
Seller (the "Personal Property Contracts"), Seller owns and has, and will have
on the Closing Date, good and marketable title to all such property (and to all
other tangible personal property and assets to be transferred to Buyer
hereunder), and none of such property is, or at the Closing will be, subject to
any security interest, mortgage, pledge, conditional sales agreement or other
lien or encumbrance. All of the material items of the tangible personal
property and assets included in the Station Assets are in all material respects
in good operating condition (ordinary wear and tear excepted) and are available
for immediate use in the conduct of the business and operations of the
Stations. All material technical equipment, constituting a part of the tangible
personal property transferred hereunder, has been maintained in accordance with
industry practice and is in good operating condition and complies in all
material respects with all applicable rules and regulations of the FCC and the
terms of the Station Licenses. The properties listed in said Section 7.7
include all such properties necessary to conduct in all material respects the
business and operations of the Stations as now conducted.
7.7.2 The Personal Property Contracts listed on such Section 7.7
constitute valid
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<PAGE>
and binding obligations of Seller and, to the best of Seller's knowledge, of
all other persons purported to be parties thereto and are in full force and
effect as of the date hereof and will on the Closing Date constitute valid and
binding obligations of Seller and, to the best of Seller's knowledge, of all
other persons purported to be parties thereto and shall be in full force and
effect. Seller is not in default under any of such Personal Property Contracts
and has not received or given written notice of any default thereunder from or
to any of the other parties thereto. Seller will use reasonable efforts to
obtain valid and binding third-party consents from all required third parties
to the Personal Property Contracts to be conveyed and assigned to Buyer as part
of the Station Assets, so as to insure the Buyer will enjoy all of the
privileges of Seller thereunder. Except as set forth in Section 7.7 of the
Disclosure Schedule, Seller has full legal power and authority to assign its
rights under the Personal Property Contracts to Buyer in accordance with this
Agreement on terms and conditions no less favorable than those in effect on the
date hereof, and such assignment will not affect the validity, enforceability
and continuity of any of the Personal Property Contracts.
7.8 Real Property.
7.8.1 Section 7.8 to the Disclosure Schedule contains a
complete and accurate list of all real property owned and/or leased by the
Seller and used primarily or exclusively by the Stations and all agreements,
leases and contracts of Seller relating to the tower, transmitter, studio site
and offices of the Stations (collectively the "Real Estate Contracts") and a
summary of the applicable leases.
7.8.2 The Real Estate Contracts listed on such Section 7.8
constitute valid and binding obligations of Seller and, to the best of Seller's
knowledge, of all other persons purported to be parties thereto and are in full
force and effect as of the date hereof and will on the Closing Date constitute
valid and binding obligations of Seller and, to the best of Seller's knowledge,
of all other persons purported to be parties thereto and shall be in full force
and effect. Seller is not in default under any of such Real Estate Contracts
and has not received or given written notice of any default thereunder from or
to any of the other parties thereto. Seller will use reasonable efforts to
obtain
[NYCORP] 35907.1
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<PAGE>
valid and binding third-party consents from all required third parties to the
Real Estate Contracts to be conveyed and assigned to Buyer as part of the
Station Assets, so as to insure that Buyer will enjoy all of the privileges of
Seller thereunder. Except as set forth in Section 7.8 of the Disclosure
Schedule, Seller has full legal power and authority to assign its rights under
the Real Estate Contracts to Buyer in accordance with this Agreement on terms
and conditions no less favorable than those in effect on the date hereof, and
such assignment will not affect the validity, enforceability and continuity of
any of the Real Estate Contracts.
7.9 Contracts. Section 7.9 of the Disclosure Schedule lists all
Contracts as of the date of this Agreement which shall be assumed by the Buyer
as of the Closing Date, except contracts entered into in the ordinary course of
business (i) of less than three (3) months duration and which impose monetary
obligations of less than Five Thousand Dollars ($5,000) each or Fifty Thousand
Dollars ($50,000) in the aggregate, (ii) for the sale or sponsorship of
broadcast time on the Stations for cash, for which no prepayment has been
received and with not more than twelve (12) months remaining in their terms,
(iii) contracts which are currently scheduled to expire prior to Closing Date
and for which Buyer will assume no obligations or (iv) Trade Agreements subject
to the limitations set forth in Section 3.4.2. Those Contracts requiring the
consent of a third party to assignment which Seller and Buyer agree are
critical to the consummation of the transactions contemplated hereby shall be
identified as "Material Contracts" on the Disclosure Schedules. Notwithstanding
the foregoing, if it is discovered before Closing that Seller failed to list a
contract in said Section 7.9 which was required to be listed, then the Buyer
may elect in its sole discretion to accept or reject such contract.
7.10 Status of Contracts. Except as noted in Section 7.9 of the
Disclosure Schedule, Seller has delivered to Buyer true and complete copies of
all written Contracts, including any and all amendments and other modifications
to such Contracts. All Contracts are valid, binding and enforceable by Seller
in accordance with their respective terms, except as limited by laws affecting
creditors' rights or equitable principles generally. To the best of Seller's
knowledge, Seller has complied in all material respects with all Contracts and
is not in default beyond any applicable grace
[NYCORP] 35907.1
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periods under any of the Contracts, and no other contracting party is in
default under any of the Contracts. Except as set forth in Section 7.9 of the
Disclosure Schedule, Seller has full legal power and authority to assign its
respective rights under the Contracts to Buyer in accordance with this
Agreement on terms and conditions no less favorable than those in effect on the
date hereof, and such assignment will not affect the validity, enforceability
and continuity of any of the Contracts.
7.11 Environmental Matters. Seller has not unlawfully disposed of any
hazardous waste or hazardous substance including Polychlorinated Byphenyls
("PCBs") in a manner which has caused, or could cause, Buyer to incur a
material liability under applicable law in connection therewith; and Seller
warrants that the technical equipment included in the Station Assets does not
contain any PCBs which are required by law to be removed and if any equipment
does contain PCBs, that such equipment is stored and maintained in compliance
with applicable law. To the best of Seller's knowledge, Seller has complied in
all material respects with all federal, state and local environmental laws,
rules and regulations applicable to the Stations and its operations, including
but not limited to the FCC's guidelines regarding RF radiation. No hazardous
waste has been disposed of by Seller, and to the best of Seller's knowledge, no
hazardous waste has been disposed of by any other person, on the real estate
occupied by the Stations or their transmitters. As used herein, the term
"hazardous waste" shall mean as defined in the Resource Conservation and
Recovery Act (RCRA) as amended and in the equivalent state statute under the
law of the state in which such real estate is located. In the event that any of
the real property to be transferred hereunder has a potential material
environmental liability, whether fixed or contingent, and such liability costs
less than Three Hundred Thousand Dollars ($300,000) to cure (whether by
cleaning the environmental contamination or moving the Station Assets on such
property), Seller shall promptly begin remedial action to cure the condition
giving rise to such liability and shall either cure such condition prior to
Closing or reduce the Purchase Price by the amount agreed to by the parties as
being adequate to cure such condition. However, in the event such remedial
action is likely to cost Seller in excess of Three Hundred Thousand Dollars
($300,000), Buyer or Seller may terminate this Agreement prior to Closing and
neither party shall have any liability to the other as a result of such
termination, other than the release of the Escrow Account to the Buyer, unless:
(a) Seller shall at its sole expense cure
[NYCORP] 35907.1
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the condition giving rise to such liability prior to Closing; (b) Buyer will
accept a reduction in the Purchase Price by the amount agreed to by the parties
as being adequate to cure such condition in no event less than Three Hundred
Thousand Dollars ($300,000); or (c) as to contingent liabilities, Seller shall
provide (i) collateral acceptable to the Buyer or a security bond in such
reasonably adequate amount as shall be sufficient to cover such liability,
which collateral or security bond shall remain in place for a period of twenty
(20) years from and after the Closing, or (ii) such other resolution mutually
agreed to by the Buyer and the Seller and reasonably acceptable to Buyer's
financing sources.
7.12 Copyrights, Trademarks and Similar Rights. Section 7.12 of the
Disclosure Schedule is a true and complete list, in all material respects, of
all copyrights, trademarks, trade names, licenses, patents, permits, jingles
and other similar intangible property rights and interests applied for, issued
to or owned by the Seller or under which Seller is a licensee or franchisee and
used exclusively or primarily in the conduct of the business and operations of
the Stations referred to in Section 1.1.5 hereof.
All of such rights and interests are issued to or owned by Seller, or
if licensed or franchised to Seller, to the best of Seller's knowledge, are
valid and in good standing and uncontested. Seller has delivered or made
available to Buyer copies of all material documents, if any, establishing such
rights, licenses or other authority. Seller has received no written notice and
has no knowledge of any infringements or unlawful use of such property. The
properties listed in Section 7.12 of the Disclosure Schedule include all such
properties necessary to conduct in all material respects the business and
operations of the Stations as now conducted.
7.13 Financial Statements. Seller has delivered to Buyer complete
copies of the operating income statements for the Stations for years ended
December 31, 1994 and 1995, and for the six month period ended June 30, 1996
(the "Financial Statements"). The Financial Statements accurately represent and
present fairly the financial condition and results of operations of the Seller
for the periods indicated. Between June 30, 1996 and the date hereof, there has
been no material adverse change in the business, property, assets or condition
(financial or otherwise) of the Seller
[NYCORP] 35907.1
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and (except for the transaction contemplated herein) Seller has operated the
Stations in all respects only in the ordinary course of business. The Seller
has engaged Miller, Kaplan, Arase & Co., at the Buyer's expense, to perform an
audit of the Stations operations for the years ended December 31, 1994 and 1995
and to perform a review of the Stations operations for the six month period
ended June 30, 1996 (collectively, the "Audit and Review"). The Buyer shall
have the right to terminate this Agreement within ten (10) business days of
receipt of the Audit and Review if the information contained in the Audit and
Review are materially different from the Financial Statements.
Except for (a) liabilities as and to the extent reflected or reserved
against in the Financial Statements, (b) liabilities not yet due and payable or
obligations to be performed or satisfied after the date hereof under contracts
and agreements listed in the Disclosure Schedule, or excluded from the
Disclosure Schedule pursuant to the terms of this Agreement, (c) liabilities
incurred between June 30, 1995 and the date hereof at or by the Stations in the
ordinary and usual course of business (including tax liabilities resulting
solely from the normal operations of the Seller during such period) and (d) any
other liabilities relating to the Stations disclosed in this Agreement or in
the Disclosure Schedule, on the date hereof, Seller has no material liabilities
or obligations relating to the Stations of any nature, whether accrued,
absolute, contingent or otherwise, of a nature customarily reflected in
financial statements reflecting the accrual basis of accounting.
7.14 Personnel Information.
7.14.1 Section 7.14 of the Disclosure Schedule contains a
true and complete list of all persons employed at the Stations, including a
description of material compensation arrangements (other than employee benefit
plans set forth in Section 7.17 of the Disclosure Schedule) and a list of other
terms of any and all agreements affecting such persons. Seller has not received
notification that any of the current key employees of Seller at the Stations
presently plan to terminate their employment, whether by reason of the
transactions contemplated hereby or otherwise and Seller shall immediately
notify Buyer upon receipt of any such notice.
[NYCORP] 35907.1
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7.14.2 Seller is not a party to any Contract with any labor
organization, nor has Seller agreed to recognize any union or other collective
bargaining unit, nor has any union or other collective bargaining unit been
certified as representing any of Seller's employees at the Stations. Seller has
no knowledge of any organizational effort currently being made or threatened by
or on behalf of any labor union with respect to employees of Seller at the
Stations. During the past three (3) years, Seller has not experienced any
strikes, work stoppages, grievance proceedings, claims of unfair labor
practices filed or other significant labor difficulties of any nature relating
to the Stations.
7.14.3 Except as disclosed in Section 7.14 of the Disclosure
Schedule, Seller, to the best of its knowledge, has complied in all material
respects at the Stations with all laws relating to the employment of labor,
including, without limitation, the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes.
7.15 Litigation. Except as set forth in Section 7.15 of the
Disclosure Schedule, Seller is subject to no judgment, award, order, writ,
injunction, arbitration decision or decree materially adversely affecting the
conduct of the business of the Stations or the Station Assets, and there is no
litigation or proceeding or, to the best of Seller's knowledge, investigation
pending or, to the best of Seller's knowledge, threatened against Seller or the
Stations in any federal, state or local court, or before any administrative
agency or arbitrator (including, without limitation, any proceeding which seeks
the forfeiture of, or opposes the renewal of, any of the Station Licenses), or
before any other tribunal duly authorized to resolve disputes, which would
reasonably be expected to have any material adverse effect upon the business,
property, assets or condition (financial or otherwise) of the Stations or which
seeks to enjoin or prohibit, or otherwise questions the validity of, any action
taken or to be taken pursuant to or in connection with this Agreement. In
particular, but without limiting the generality of the foregoing, there are no
applications, complaints or proceedings pending or, to the best of Seller's
knowledge, threatened before the FCC or any other
[NYCORP] 35907.1
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governmental organization with respect to the business or operations of the
Stations other than applications, complaints or proceedings which affect the
broadcasting industry generally.
7.16 Compliance With Laws. Except as set forth in Section 7.16 of the
Disclosure Schedule, Seller has not received any notice asserting any material
non-compliance by it in connection with the business or operation of the
Stations with any applicable statute, rule or regulation, federal, state or
local. Seller is not in default with respect to any judgment, order, injunction
or decree of any court, administrative agency or other governmental authority
or any other tribunal duly authorized to resolve disputes in any respect
material to the transactions contemplated hereby. Seller is in compliance in
all material respects with all laws, regulations and governmental orders
applicable to the conduct of the business and operations of the Stations, the
failure to comply with which would have a material adverse effect on the
business, operations or financial condition of the Stations, and its present
use of the Station Assets does not violate any of such laws, regulations or
orders, violation of which would have a material adverse effect on the Station
Assets or Stations's operation.
7.17 Employee Benefit Plans. Section 7.17 of the Disclosure Schedule
contains a true and complete list as of the date of this Agreement of all
employee benefit plans applicable to the employees of Seller employed at the
Stations. Seller maintains no other employee benefit plan as the term is
defined in Section 3 of the Employee Retirement Income Security Act of 1984, as
amended, applicable to the employees of Seller employed at the Stations.
7.18 Accuracy of Information. No written statements made by Seller
herein and no information provided by Seller herein or in the documents,
instruments or other written communications made or delivered directly by
Seller to Buyer in connection with the negotiations covering the purchase and
sale of the Station Assets contains any untrue statement of a material fact or
omits a material fact necessary to make the statements contained therein or
herein not misleading and there is no fact known to Seller which relates to any
information contained in any such written document, instrument or
communications which Seller has not disclosed to Buyer in writing which
[NYCORP] 35907.1
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materially affects adversely the Stations or the Station Assets. To the extent
that a representation or other information is made to the Seller's knowledge or
is otherwise qualified by its terms, this representation shall not be
interpreted to expand such limitations or qualifications.
ARTICLE 8
COVENANTS OF BUYER
8.1 Closing. On the Closing Date, Buyer or its assignee shall purchase
the Station Assets from Seller as provided in Article 1 hereof and shall assume
the Assumed Liabilities of Seller as provided in Article 2 hereof.
8.2 Notification. Buyer shall notify Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated hereby.
8.3 No Inconsistent Action. Buyer shall not take any other action
which is materially inconsistent with its obligations under this Agreement.
8.4 Buyer's Post-Closing Covenant. Buyer, for a period of three (3)
years following the Closing Date, shall make available for audit and inspection
by Seller and its representatives for any reasonable purpose all records,
files, documents and correspondence transferred to it hereunder. Buyer shall at
no time dispose of or destroy any such records, files, documents and
correspondence without giving sixty (60) days prior notice to Seller to permit
Seller, at its expense, to examine, duplicate or take possession of and title
to such records, files, documents and correspondence. All personnel records
shall be maintained as confidential if required by any applicable state or
federal law.
ARTICLE 9
COVENANTS OF SELLER
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9.1 Seller's Pre-Closing Covenants. Seller covenants and agrees with
respect to the Stations that between the date hereof and the Closing Date,
except as expressly permitted by this Agreement or with the prior written
consent of Buyer, it shall act in accordance with the following:
9.1.1 Seller shall conduct the business and operations of the
Stations in the ordinary and prudent course of business and with the intent of
preserving the ongoing operations and assets of the Stations, including, but
not limited to, maintaining the independent identity of the Stations, retaining
the current format of the Stations and using its best efforts to retain the
services of key employees.
9.1.2 Seller shall use commercially reasonable efforts to
preserve the operation of the Stations intact and to preserve the business of
Stations' customers, suppliers and others having business relations with the
Stations and continue to conduct financial operations of the Stations,
including its credit and collection policies, in the ordinary course of
business with substantially the same effort, and to substantially the same
extent and in the same manner, as in the prior conduct of the business of the
Stations.
9.1.3 Seller shall operate the Stations in all material
respects in accordance with FCC Rules and Regulations and the Station Licenses
and with all other laws, regulations, rules and orders, and shall not cause or
permit by any act, or failure to act, any of the Station Licenses to expire, be
surrendered, adversely modified, or otherwise terminated, or the FCC to
institute any proceedings for the suspension, revocation or adverse
modification of any of the Station Licenses, or fail to prosecute with due
diligence any pending applications to the FCC.
9.1.4 Should any fact relating to Seller which would cause
the FCC to deny its consent to the transactions contemplated by this Agreement
come to Seller's attention, Seller shall promptly notify Buyer thereof and
shall use its reasonable efforts to take such steps as may be necessary to
remove any such impediment to the transactions contemplated by this Agreement.
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9.1.5 Seller shall not other than in the ordinary course of
business or in accordance with prepared budgets attached hereto as Schedule
9.1.5 or after receiving Buyer's prior written approval (i) sell or dispose of
or commit to sell or dispose of any of the Station Assets; (ii) grant or agree
to grant any general increases in the rates of salaries or compensation payable
to employees of the Stations; (iii) grant or agree to grant any specific bonus
or increase to any executive or management employee of the Stations; or (iv)
provide for any new pension, retirement or other employment benefits for
employees of the Stations or any increases in any existing benefits.
9.1.6 Seller shall provide Buyer prompt written notice of any
change in any of the information contained in the representations and
warranties made in Article 7 hereof or any Exhibits or Schedules herein or
attached hereto.
9.1.7 Seller may enter into or renew any contract, agreement,
commitment or other understanding or arrangement in the ordinary course of
business, provided, however, that except with respect to contracts for the sale
of time for cash and except for Trade Agreements, the liability under said
contracts to be assumed by Buyer at Closing shall not exceed Five Thousand
Dollars ($5,000) per contract or Fifty Thousand Dollars ($50,000) in the
aggregate, without the written approval of the Buyer.
9.1.8 The Seller shall give the Buyer and the Buyer's
counsel, accountants, engineers and other representatives, full and reasonable
access during normal business hours to all of the Stations' personnel,
properties, books, contracts, reports and records including financial
information and tax returns with supporting work papers relating to the
Stations, to all real estate buildings and equipment relating to the Stations,
and to the Stations' employees in order that the Buyer may have full
opportunity to make such investigation as it desires of the affairs of the
Stations. Seller shall furnish Buyer with information and copies of all
documents and agreements including but not limited to financial and operating
data and other information in its possession concerning the financial
condition, results of operations and business of the Seller and the Stations,
that the Buyer may reasonably request in order to complete the Buyer's due
diligence examination of the Stations.
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The rights of the Buyer under this Section shall not be exercised in such a
manner as to materially interfere with the business of the Stations.
9.1.9 Notwithstanding anything in this Agreement to the
contrary, Seller may enter into any contract without the consent of Buyer, but
if any such contract is outside the scope of the restrictions set forth in this
Section 9.1, Buyer shall not be obligated to accept and assume such contract at
Closing.
9.1.10 Seller shall use its reasonable best efforts,
consistent with past practice, to complete all obligations owing by Seller
under Trade Agreements prior to the Closing.
9.1.11 Seller shall spend not less than one hundred percent
(100%) of the cash promotions, advertising and research expenditures Seller
budgeted for the Stations, plus an additional $50,000, for the period from the
date of this Agreement through the Closing Date, such budget is attached hereto
as Disclosure Schedule 9.1.11.
9.1.12 Seller shall use its best efforts to maintain the
employment at the Stations and to renew, in accordance with this Agreement, the
existing employment contracts of the employees listed in Section 7.14 of the
Disclosure Schedule. Between the date hereof and for a period of three (3)
years from the Closing Date, neither the Seller nor any executive officer of
Seller shall, directly or indirectly, through any agent or otherwise, hire or
solicit the employment of any of the employees listed on Section 7.14 of the
Disclosure Schedule who are hired by Buyer at or after the Closing or who are
subject to non-competition agreements with Buyer (but only to the extent
limited by such non-competition agreements), except as agreed to in writing by
Buyer and Seller.
9.1.13 Seller shall provide Buyer with revenue pacing reports
for the Stations on a weekly basis during the term of this Agreement.
Additionally, within twenty-five (25) days of the end of each month, Seller
shall deliver to Buyer an unaudited statement of revenue and expenses of the
Stations for the month then ended. The weekly revenue pacing reports and the
monthly
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statements of revenue and expenses shall be certified by the Chairman or Chief
Financial Officer of Seller, shall be true and complete to the best of Seller's
knowledge and shall fairly and accurately represent the results of operation of
the Stations for the period covered by such reports and statements. Seller
shall also furnish to Buyer any and all other information at such times as is
customarily prepared by Seller concerning the financial condition of the
Stations as Buyer may reasonably request.
9.1.14 The Seller shall cooperate with the Buyer by providing
the Buyer with such financial and accounting records as Buyer may reasonably
request in connection with the preparation of financial statements of the
Stations.
9.2 Notification. Seller shall notify Buyer of any material
litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Seller which challenges the transactions
contemplated hereby.
9.3 No Inconsistent Action. Seller shall not take any action which is
materially inconsistent with its obligations under this Agreement.
9.4 Closing Covenant. On the Closing Date, Seller shall transfer,
convey, assign and deliver to Buyer the Station Assets and the Assumed
Liabilities as provided in Articles 1 and 2 of this Agreement.
ARTICLE 10
JOINT COVENANTS
Buyer and Seller covenant and agree that between the date hereof and
the Closing Date, they shall act in accordance with the following:
10.1 Conditions. If any event should occur, either within or without
the control of any party
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hereto, which would prevent fulfillment of the conditions upon the obligations
of any party hereto to consummate the transactions contemplated by this
Agreement, the parties hereto shall use their best efforts to cure the event as
expeditiously as possible.
10.2 Confidentiality. Buyer and Seller shall each keep confidential
all information obtained by it with respect to the other in connection with
this Agreement and the negotiations preceding this Agreement, and will use such
information solely in connection with the transactions contemplated by this
Agreement, and if the transactions contemplated hereby are not consummated for
any reason, each shall return to the other, without retaining a copy thereof,
any schedules, documents or other written information obtained from the other
in connection with this Agreement and the transactions contemplated hereby.
Notwithstanding the foregoing, neither party shall be required to keep
confidential or return any information which (i) is known or available through
other lawful sources, not bound by a confidentiality agreement with the
disclosing party; (ii) is or becomes publicly known through no fault of the
receiving party or its agents; (iii) is required to be disclosed pursuant to an
order or request of a judicial or governmental authority (provided the
disclosing party is given reasonable prior notice) or pursuant to the
requirements of the Securities Act of 1933 or the Securities Exchange Act of
1934; or (iv) is independently acquired or developed by such party without
violating any of the provision of this Section 10.2.
10.3 Cooperation. Buyer and Seller shall cooperate fully with each
other in taking any actions, including actions to obtain the required consent
of any governmental instrumentality or any third party necessary or helpful to
accomplish the transactions contemplated by this Agreement; provided, however,
that no party shall be required to take any action which would have a material
adverse effect upon it or any affiliated entity.
10.4 Control of Stations. Buyer shall not, directly or indirectly,
control, supervise or direct the operations of the Stations. Such operations,
including complete control and supervision of all Stations programs, employees
and policies, shall be the sole responsibility of Seller.
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10.5 Consents to Assign. To the extent that any Contract is not
capable of being sold, assigned, transferred, delivered or subleased without
the waiver or consent of any third person (including a government or
governmental unit), or if such sale, assignment, transfer, delivery or sublease
or attempted sale, assignment, transfer, delivery or sublease would constitute
a breach thereof or a violation of any law or regulation, this Agreement and
any Assignment executed pursuant hereto shall not constitute a sale,
assignment, transfer, delivery or sublease or an attempted sale, assignment,
transfer, delivery or sublease thereof. In those cases where consents,
assignments, releases and/or waivers have not been obtained at or prior to the
Closing Date to the transfer and assignment to the Buyer of the Contracts, this
Agreement and any Assignment executed pursuant hereto, to the extent permitted
by law, shall constitute an equitable assignment by Seller to the Buyer of all
of Seller's rights, benefits, title and interest in and to the Contracts, and
where necessary or appropriate, the Buyer shall be deemed to be the Seller's
agent for the purpose of completing, fulfilling and discharging all of Seller's
rights and liabilities arising after the Closing Date under such Seller
Contracts. Seller shall use its reasonable efforts to provide the Buyer with
the benefits of such Contracts (including, without limitation, permitting the
Buyer to enforce any rights of Seller arising under such Contracts), and the
Buyer shall, to the extent the Buyer is provided with the benefits of such
Contracts, assume, perform and in due course pay and discharge all debts,
obligations and liabilities of Seller under such Contracts.
[10.6 Bulk Sales Laws. The Buyer hereby waives compliance by Seller
with the provisions of the "bulk sales" or similar laws of any state. Seller
agrees to indemnify the Buyer and hold it harmless against any and all claims,
losses, damages, liabilities, costs and expenses incurred by the Buyer or any
affiliate as a result of any failure to comply with any "bulk sales" or similar
laws.]
10.7 Employee Matters. Buyer shall have the right, but not the
obligation, to hire substantially all of the employees of the Stations
immediately following the Closing. Seller shall be responsible for all salary
and benefits of the employees of the Stations for the period prior to the
Closing Date. All employees of the Stations shall cease active participation in
all of Seller's employee benefit plans on the Closing Date, in accordance with
the terms of such plans.
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ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1 Representations, Warranties and Covenants.
11.1.1 All representations and warranties of Seller made in
this Agreement shall be true and complete in all material respects as of the
date hereof and on and as of the Closing Date as if made on and as of that
date, except for changes expressly permitted or contemplated by the terms of
this Agreement.
11.1.2 All of the terms, covenants and conditions to be
complied with and performed by Seller on or prior to Closing Date shall have
been complied with or performed in all material respects.
11.1.3 Buyer shall have received a certificate, dated as of
the Closing Date, executed by officers of Seller, to the effect that the
representations and warranties of Seller contained in this Agreement are true
and complete in all material respects on and as of the Closing Date as if made
on and as of that date, and that Seller has complied with or performed all
terms, covenants and conditions to be complied with or performed by it in all
material respects on or prior to the Closing Date.
11.2 Governmental Consents. The FCC Consents shall have become a Final
Order, or such condition shall have been waived by Buyer. In addition, all
consents, approvals, authorizations or other requirements prescribed by the HSR
Act shall have been obtained and satisfied.
11.3 Governmental Authorizations. Seller shall be the holder of the
Station Licenses and
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all other material licenses, permits and other authorizations listed in Section
7.4 of the Disclosure Schedule, and there shall not have been any modification
of any of such licenses, permits and other authorizations which has a material
adverse effect on the Stations or the conduct of its business and operations.
No proceeding shall be pending which seeks or the effect of which reasonably
could be to revoke, cancel, fail to renew, suspend or modify materially and
adversely the Station Licenses or any other material licenses, permits or other
authorizations.
11.4 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against,
any party hereto which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
11.5 Legal Opinion. Seller shall have delivered to Buyer a written
opinion of its General Counsel, dated as of the Closing Date, addressed to
Buyer in the form attached hereto as Exhibit B.
11.6 FCC Legal Opinion. Seller shall have furnished Buyer a written
opinion of Seller's FCC counsel, dated the Closing Date, addressed to Buyer in
the form attached hereto as Exhibit C.
11.7 Third-Party Consents. Seller shall have obtained and shall have
delivered to Buyer all third-party consents to the Material Contracts and to
all other Contracts assigned or transferred hereunder, except those the absence
of which will not have a material adverse effect on the operation of the
Stations.
11.8 Closing Documents. Seller shall have delivered or caused to be
delivered to Buyer, on the Closing Date, all deeds, bills of sale,
endorsements, assignments and other instruments of conveyance and transfer
reasonably satisfactory in form and substance to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer, including,
without limitation, each of the documents required to be delivered pursuant to
Article 15.
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11.9 Financing Statements. Seller shall have delivered to Buyer
releases or shall have delivered commitments from its lenders to deliver
releases immediately subsequent to the Closing, under the Uniform Commercial
Code of any financing statements filed against any Station Assets in the
jurisdiction in which the Station Assets are and have been located since such
Station Assets were acquired by Seller, except for informational filings made
by equipment lessors on lease obligations being specifically assumed by Buyer
as set forth in Section 7.9 of the Disclosure Schedule.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1 Representations, Warranties and Covenants.
12.1.1 All representations and warranties of Buyer made in
this Agreement shall be true and complete in all material respects as of the
date hereof and on and as of the Closing Date as if made on and as of that
date, except for changes expressly permitted or contemplated by the terms of
this Agreement.
12.1.2 All the terms, covenants and conditions to be complied
with and performed by Buyer on or prior to the Closing Date shall have been
complied with or performed in all material respects.
12.1.3 Seller shall have received a certificate, dated as of
the Closing Date, executed by officers of Buyer, to the effect that the
representations and warranties of Buyer contained in this Agreement are true
and complete in all material respects on and as of the Closing Date as if made
on and as of that date, and that Buyer has complied with or performed all
terms, covenants and
[NYCORP] 35907.1
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conditions to be complied with or performed by it in all material
respects on or prior to the Closing Date.
12.2 Governmental Consents. The FCC Consents shall have become a Final
Order, or such condition shall have been waived by Buyer. In addition, all
consents, approvals, authorizations or other requirements prescribed by the HSR
Act shall have been obtained and satisfied.
12.3 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending against, and no other, decree or judgment of any
court, agency or other governmental authority shall have been rendered against
any party hereto which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
12.4 Legal Opinion. Buyer shall have delivered to Seller an opinion of
its counsel, dated as of the Closing Date, addressed to Seller in the form
attached hereto as Exhibit E.
ARTICLE 13
TRANSFER TAXES; FEES AND EXPENSES
13.1 Expenses. Except as set forth in Section 13.2 and 13.3 hereof,
each party hereto shall be solely responsible for all costs and expenses
incurred by it in connection with the negotiation, preparation and performance
of and compliance with the terms of this Agreement.
13.2 Transfer Taxes and Similar Charges. All costs of transferring the
Station Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be borne equally by Buyer and Seller.
13.3 Governmental Filing or Grant Fees. Any filing or grant fees
imposed by any governmental authority the consent of which is required to the
transactions contemplated hereby
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shall be borne equally by Buyer and Seller.
ARTICLE 14
COMMISSIONS OR FINDER'S FEE
14.1 Buyer's Representation and Agreement to Indemnify. Buyer
represents and warrants to Seller that neither it nor any person or entity
acting on its behalf has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity except to The Sillerman Companies. Buyer further agrees to
indemnify, defend and hold Seller harmless from and against any and all claims,
losses, liabilities and expenses (including reasonable attorney's fees) arising
out of a claim by The Sillerman Companies or any other person or entity based
on any such arrangement or agreement made or alleged to have been made by
Buyer. Buyer shall be solely responsible for any fees due to The Sillerman
Companies.
14.2 Seller's Representation and Agreement to Indemnify. Seller
represents and warrants to Buyer that neither it nor any person or entity
acting on its behalf has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity, except to Media Venture Partners. Seller further agrees to
indemnify, defend and hold Buyer harmless from and against any and all claims,
losses, liabilities and expenses (including reasonable attorney's fees) arising
out of a claim by Media Venture Partners. or any other person or entity based
on any such arrangement or agreement made or alleged to have been made by
Seller. Buyer shall be solely responsible for any fees due to Media Venture
Partners.
ARTICLE 15
DOCUMENTS TO BE DELIVERED AT CLOSING
15.1 Seller's Documents. At the Closing, Seller shall deliver or cause
to be delivered to
Buyer the following:
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15.1.1 Certified resolutions of the Board of Directors of Seller
approving the execution and delivery of this Agreement and each of the other
documents and authorizing the consummation of the transactions contemplated
hereby and thereby;
15.1.2 A certificate, dated the Closing Date, by Seller in the form
described in Section 11.1.3 above;
15.1.3 Governmental Certificates showing that Seller is duly
incorporated and in good standing in the State of Delaware and qualified and in
good standing in the State of Nebraska dated not more than forty-five (45) days
before the Closing Date;
15.1.4 Articles of Incorporation and Bylaws of Seller certified by
Seller's secretary as of the Closing Date;
15.1.5 Bill of Sale, assignments and other good and sufficient
instruments of conveyance, transfer and assignment, all in form and substance
reasonably satisfactory to counsel for Buyer, as shall be effective to vest in
Buyer or its permitted assignees, good and marketable title in and to the
Station Assets transferred pursuant to this Agreement in accordance with the
terms of this Agreement;
15.1.6 At the time and place of Closing, originals or copies of all
program, operations, transmissions, or maintenance logs and all other records
required to be maintained by the FCC with respect to the Stations, including
the Stations's public file, shall be left at the Stations and thereby delivered
to Buyer;
15.1.7 The Seller's opinion letters referenced in Sections 11.5 and
11.6 above; and
15.1.8 Such additional information and materials as Buyer shall have
reasonably requested.
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15.2 Buyer's Documents. At the Closing, Buyer shall deliver or cause
to be delivered to Seller the following:
15.2.1 The Purchase Price in accordance with Section 3.3 hereof;
15.2.2 A certificate, dated the Closing Date, by Buyer in the form
described in Section 12.1.3 above.
15.2.3 The opinion of Buyer's counsel, dated the Closing Date, to the
effect set forth in Section 12.4;
15.2.4 Governmental certificates showing that Buyer is duly
incorporated and in good standing in the State of Delaware and qualified and in
good standing in the of State Nebraska dated not more than forty-five (45) days
before the Closing Date;
15.2.5 An assignment and assumption agreement or agreements reasonably
satisfactory in form and substance to counsel to Seller effecting the
assumption of the Assumed Liabilities;
15.2.6 Certified resolutions of the Board of Directors of Buyer
approving the execution and delivery of this Agreement and each of the other
documents and agreements referred to herein and authorizing the consummation of
the transactions contemplated hereby and thereby;
15.2.7 Articles of Incorporation and Bylaws of Buyer certified by
Buyer's secretary as of the Closing Date; and
15.2.8 Such additional information and materials as Seller shall have
reasonably requested.
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ARTICLE 16
INDEMNIFICATION
16.1 Seller's Indemnities. Seller hereby agrees to indemnify, defend
and hold Buyer harmless with respect to any and all demands, claims, actions,
suits, proceedings, assessments, judgments, costs, losses, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees)
asserted against, resulting from, imposed upon or incurred by Buyer directly or
indirectly relating to or arising out of:
16.1.1 Any and all liabilities, obligations, or commitments
of Seller of any nature, whether absolute, accrued, contingent, or otherwise,
including those relating to all periods prior to the Closing, whether the claim
is asserted prior to or after the Closing, by reason of or resulting from
liabilities or obligations of or claims against Seller in connection with
Seller's ownership or operation of the Stations prior to the Closing, except
liabilities, obligations, or commitments of Seller included in the Assumed
Liabilities;
16.1.2 The breach of any of the representations or warranties
or failure by Seller to perform any covenants, conditions or agreements of
Seller set forth in this Agreement;
16.1.3 Any failure to comply with any "bulk sales" laws
applicable to the transactions contemplated hereby;
16.1.4 The failure of Seller to pay, perform or discharge
when due any of Seller's obligations, liabilities or Contracts not assumed by
Buyer pursuant to this Agreement;
16.1.5 The litigation listed on Section 7.15 of the
Disclosure Schedule; and
16.1.6 Any employee benefit plan maintained by Seller.
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16.2 Buyer's Indemnities. Buyer hereby agrees to indemnify, defend and
hold Seller harmless with respect to any and all demands, claims, actions,
suits, proceedings, assessments, judgments, costs, losses, damages, liabilities
and expenses (including, without limitation, reasonable attorneys' fees)
asserted against, resulting from, imposed upon or incurred by Seller directly
or indirectly relating to or arising out of:
16.2.1 The use or operation of the Station Assets after the
Closing Date;
16.2.2 The breach of any of the representations, warranties,
covenants, conditions or agreements of Buyer set forth in this Agreement; and
16.2.3 The Assumed Liabilities.
16.3 Rights. Buyer and Seller agree that the rights of indemnification
provided in this Article 16 are exclusive of and in addition to any and all
other such rights of Buyer or Seller hereunder.
16.4 Survival of Representations and Warranties. Either party shall
have the right to bring an action with respect to the representations and
warranties contained herein for a period of twelve (12) months following the
Closing Date, and upon the expiration of such period such right shall lapse and
be of no further force or effect.
16.5 Limitation on Indemnity. Notwithstanding anything to the contrary
contained in this Agreement, and subject to the proviso set forth below,
neither party shall have any liability or obligation to the other for breach of
any representation, warranty, covenant or agreement of the other in this
Agreement except to the extent that the aggregate of all claims for such
breaches exceeds Fifty Thousand Dollars ($50,000) (the "Threshold Amount"), in
which event the party so liable shall then be liable for all claims for any
such breaches, including the sums constituting the Threshold Amount; provided,
however, that the foregoing Threshold Amount limitation shall not apply to
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Seller's obligation for the Excess Trade Balance. Neither party shall have any
post-closing liability or obligation to the other for breach of any
representation, warranty, covenant or agreement of the other in this Agreement
in excess of Ten Million Dollars ($10,000,000).
16.6 Procedures.
16.6.1 Promptly after the receipt by either party (the
"Indemnified Party") of notice of (A) any claim or (B) the commencement of any
action or proceeding which may entitle such party to indemnification under this
Section, such party shall give the other party (the "Indemnifying Party")
written notice of such claim or the commencement of such action or proceeding
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting from such claim. The failure to give the
Indemnifying Party timely notice under this Section 16.6.1 shall not preclude
the Indemnified Party from seeking indemnification from the Indemnifying Party
unless such failure has materially prejudiced the Indemnifying Party's ability
to defend the claim or litigation.
16.6.2 If the Indemnifying Party assumes the defense of any
such claim or litigation resulting therefrom with counsel reasonably acceptable
to Indemnified Party, the obligations of the Indemnifying Party as to such
claim shall be limited to taking all steps necessary in the defense or
settlement of such claim or litigation resulting therefrom and to holding the
Indemnified Party harmless from and against any losses, damages and liabilities
caused by or arising out of any settlement approved by the Indemnifying Party
or any judgment in connection with such claim or litigation resulting
therefrom; provided, however, that the Indemnified Party may participate, at
its expense, in the defense of such claim or litigation provided that the
Indemnifying Party shall direct and control the defense of such claim or
litigation. The Indemnified Party shall cooperate and make available all books
and records reasonably necessary and useful in connection with the defense. The
Indemnifying Party shall not, in the defense of such claim or any litigation
resulting therefrom, consent to entry of any judgment, except with the written
consent of the Indemnified Party, or enter into any settlement, except with the
written consent of the Indemnified Party, which does not include
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as an unconditional term thereof the giving by the claimant or the plaintiff to
the Indemnified Party of a release from all liability in respect of such claim
or litigation.
16.6.3 If the Indemnifying Party shall not assume the defense
of any such claim or litigation resulting therefrom, the Indemnified Party may,
but shall have no obligation to, defend against such claim or litigation in
such manner as it may deem appropriate, and the Indemnified Party may
compromise or settle such claim or litigation without the Indemnifying Party's
consent. The Indemnifying Party shall promptly pay any such settlement of such
claim or litigation and shall also promptly reimburse the Indemnified Party for
the amount of all expenses, legal or otherwise, incurred by the Indemnified
Party in connection with the defense against or settlement of such claim or
litigation. If no settlement of the claim or litigation is made, the
Indemnifying Party shall promptly reimburse the Indemnified Party for the
amount of any judgment rendered with respect to such claim or in such
litigation and of all expenses, legal or otherwise, incurred by the Indemnified
Party in the defense against such claim or litigation.
ARTICLE 17
TERMINATION RIGHTS
17.1 Termination. This Agreement may be terminated by either Buyer or
Seller, if the party seeking to terminate is not in material default or breach
of this Agreement, upon written notice to the other upon the occurrence of any
of the following:
(a) if the other party defaults in any material respect in
the observance or in the due and timely performance of any of its covenants or
agreements herein contained and such material default shall not be cured within
fifteen (15) days of the date of notice of default served by the party claiming
such material default; or
(b) if the FCC denies the FCC Application, or if the FCC
fails to grant the FCC Consents within twelve (12) months following the filing
of the FCC Application, provided that the party seeking termination has
diligently prosecuted the FCC Application in good faith; or
(c) on the first anniversary of this Agreement, if there
shall be in effect
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any judgment, final decree or order that would prevent or make unlawful
the Closing of this Agreement; or
(d) by the Buyer only, if there is a cessation of broadcast
transmissions by the Stations, for a period of three (3) full consecutive days
or for seven (7) or more days within any thirty (30) day period, or normal
broadcast transmissions are not resumed by the date immediately preceding the
Closing Date; or
(e) as provided in Sections 7.11 and 18.3 or any other
section of this Agreement which specifically provides for terminations.
17.2 Liability. The termination of this Agreement under Section 17.1
shall not relieve any party of any liability for breach of this Agreement prior
to the date of termination.
ARTICLE 18
OTHER PROVISIONS
18.1 Specific Performance. Seller recognizes that, in the event Seller
refuses to perform the provisions of this Agreement, monetary damages alone
will not be adequate. Buyer shall, therefore, be entitled in such event to seek
specific performance of the terms of this Agreement. In any action to enforce
the provisions of this Agreement, Seller shall waive the defense that there is
an adequate remedy at law or equity and agrees that Buyer shall have the right
to seek specific performance of the terms of this Agreement without being
required to prove actual damages, post bond or furnish other security. If
specific performance cannot be obtained, Buyer shall be entitled to seek actual
monetary damages.
18.2 Liquidated Damages. If the Seller terminates this Agreement
pursuant to Section 17.1 above due to Buyer's breach of any material
representation, warranty, covenant or condition hereunder, and Seller is not at
that time in breach of any material representation, warranty, covenant or
condition hereunder, then Seller would suffer direct and substantial damages,
which damages cannot be determined within reasonable certainty. Therefore,
because of the expense and delay
[NYCORP] 35907.1
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which would be incurred in such event by Seller, Buyer shall pay to Seller the
amount of Two Million Dollars ($2,000,000), which amount shall constitute
liquidated damages. It is understood and agreed that such liquidated damage
amount represents Buyer's and Seller's reasonable estimate of actual damages
and does not constitute a penalty. Recovery of liquidated damages from the
Escrow Account shall be the sole and exclusive remedy of Seller against Buyer
for failing to consummate this Agreement on the Closing Date and shall be
applicable regardless of the actual amount of damages sustained. In the event
that either of the parties hereto bring suit to enforce the provisions of this
Section 18.2 or Section 18.1 above, the prevailing party in any such action
shall, in addition to any remedies set forth in this Agreement, be entitled to
recover reasonable attorney's fees from the other party.
18.3 Risk of Loss. The risk of loss or damage to any of the Station
Assets prior to the Closing Date shall be upon Seller. Seller shall repair,
replace and restore any such damaged or lost Stations Asset to its prior
condition as soon as possible and in no event later than the Closing Date.
Except as provided below, if Seller fails to restore or replace a Stations
Asset with a value exceeding Fifty Thousand Dollars ($50,000), Buyer may elect
either to terminate this Agreement pursuant to Article 17 hereof or to
consummate the Closing on the Closing Date. If Seller fails to restore or
replace such Stations Asset and Buyer does not elect to terminate this
Agreement, Seller shall assign to Buyer at Closing Seller's rights under any
insurance policy or pay over to Buyer all proceeds of insurance covering such
Stations Asset's damage, destruction or loss. If the restoration and
replacement of any damaged or destroyed property has not been completed at the
time the Closing would otherwise be held, then unless Seller and Buyer
otherwise agree, the Closing Date shall be delayed and shall take place within
fifteen (15) days after Seller gives written notice to Buyer of completion of
the restoration or replacement of such Stations Asset. If the delay in the
Closing Date under this Section 18.3 would cause the Closing to fall at anytime
after the period permitted by the FCC Consents, Seller and Buyer shall file an
appropriate request with the FCC for an extension of time within which to
complete the Closing.
18.4 Further Assurances. After the Closing, Seller shall from
time to time, at the request of
[NYCORP] 35907.1
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and without further cost or expense to Buyer, execute and deliver such other
instruments of conveyance and transfer and take such other actions as may
reasonably requested in order to more effectively consummate the transactions
contemplated hereby to vest in Buyer good and marketable title to the assets
being transferred hereunder, and Buyer shall from time to time, at the request
of and without further cost or expense to Seller, execute and deliver such
other instruments and take such other actions as may reasonably be requested in
order to more effectively relieve Seller of any obligations being assumed by
Buyer hereunder.
18.5 Waiver. No delay or failure by any party hereto in exercising any
right, power or privilege under this Agreement, or under any other instrument
or document given in connection with or pursuant to this Agreement, shall
impair any such right, power or privilege or be construed as a waiver of any
default or any acquiescence therein. No single or partial exercise of any such
right, power or privilege shall preclude the further exercise of any right,
power of privilege, or the exercise of any other right, power or privilege.
18.6 Severability. If any part or any provision of this Agreement
shall be invalid or unenforceable under applicable law, said part or provisions
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining provisions of this Agreement which
shall be construed as if such invalid parts or provisions had not been
inserted, and such invalid or unenforceable provisions shall become and be
immediately amended and reformed to include only the portions thereof as are
enforceable by the court or such other body having jurisdiction of this
Agreement; and the parties agree that such portions as so amended and reformed
shall be valid and binding as though any wholly invalid or unenforceable
portion had not been included herein.
18.7 Benefit and Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No party may voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent of
the other party; except that Buyer may assign its interests under this
Agreement to any entity
[NYCORP] 35907.1
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affiliated with Robert F.X. Sillerman.
18.8 Entire Agreement. This Agreement and the Exhibits hereto embody
the entire agreement and understanding of the parties hereto and supersede any
and all prior agreements, arrangements and understandings relating to the
matters provided for herein. No amendment, waiver of compliance with any
provision or condition hereof or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, change, extension or
discharge is sought.
18.9 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
18.10 Governing Law. The construction and performance of this
Agreement shall be governed by the laws of the State of New York without giving
effect to the choice of law provisions thereof.
18.11 Notices. Any notice, demand or request required or permitted to
be given under the provisions of this Agreement shall be in writing and shall
be deemed to have been duly delivered and received on the date of personal
delivery or on the date of receipt, if mailed by registered or certified mail,
postage prepaid and return receipt requested, or on the date of a stamped
receipt, if sent by an overnight delivery service, and shall be addressed to
the following addresses, or to such other address as any party may request, in
the case of Seller, by notifying Buyer, and in the case of Buyer, by notifying
Seller:
To Seller: American Radio Systems Corporation
116 Huntington Avenue, 11th Floor
Boston, Massachusetts 02116
Attn: Steve Dodge, President
Copy to: American Radio Systems Corporation
116 Huntington Avenue, 11th Floor
Boston, Massachusetts 02116
[NYCORP] 35907.1
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Attn: Michael Milsom, Esq.
To Buyer: Triathlon Broadcasting of Omaha, Inc.
650 B Street, Suite 1920
San Diego, California
Attn: Norman Feuer
Copy to: Howard Berkower, Esq.
Baker & McKenzie
805 Third Avenue
New York, NY 10022
18.12 Financial Statements. The financial statements required
to be delivered to Buyer shall be mailed to the following:
Triathlon Broadcasting Company
150 East 58th Street, 19th Floor
New York, New York 10155
Attn: Chief Financial Officer
18.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which
together shall constitute one and the same instrument.
18.14 Accounts Receivable. Buyer acknowledges that all accounts
receivable in connection with the operation of the Stations, including but not
limited to accounts receivable for advertising revenues for programs and
announcements performed prior to the Closing Date and other broadcast revenues
for services performed prior to the Closing Date, shall remain the property of
Seller and that Buyer shall not acquire any beneficial right of interest herein
or responsibility therefor, with the following exception: for a period of
ninety (90) days following the Closing Date, Buyer agrees to use reasonable
efforts to collect such accounts receivable in the normal and ordinary course
of business and will apply all such amounts collected to the account debtor's
oldest account receivable first, except that any such accounts collected by
Buyer from persons who are also indebted to Buyer may be applied to Buyer's
account where (i) there is a pre-existing bona fide dispute between Seller and
such account debtor with respect to such account or where the account debtor
specifically
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designates that payment is to be applied to Buyer's account; (ii) Buyer has
notified Seller of such dispute or specific designation of payment by the
account debtor; and (iii) thirty (30) days have elapsed since the date notice
was given by Buyer to Seller and such account remains subject to dispute or
such account debtor has not rescinded its specific designation of payment. Such
obligation and authority shall not extend to the institution of litigation,
employment of counsel or a collection agency or any other extraordinary means
of collection unless authorized in writing by Seller. Buyer agrees to cooperate
with Seller as to any litigation or other collection efforts instituted by
Seller to collect delinquent accounts receivable. Within fifteen (15) days
following the end of each of the first three (3) months subsequent to the
Closing Date, Buyer shall deliver to Seller a statement or report showing all
such collections effected since the Closing Date, together with a check or
draft for the amount of such collections, net of commissions. If at any time
Buyer determines that any such accounts are uncollectible, Buyer shall notify
Seller of such determination; and upon Seller's written request, and in any
event on the 90th day following the Closing Date, Buyer shall furnish or make
available to Seller all records, files and data relating to the collection
efforts of Buyer with respect to such accounts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SELLER:
AMERICAN RADIO SYSTEMS CORPORATION
By:
Steve Dodge
President
BUYER:
TRIATHLON BROADCASTING OF OMAHA, INC.
[NYCORP] 35907.1
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By:
Norman Feuer
President
[NYCORP] 35907.1
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 15 day of July, 1996 by and between TRIATHLON BROADCASTING OF
LITTLE ROCK, INC., a Delaware corporation ("Buyer"), and SOUTHERN STARR OF
ARKANSAS, INC., an Arkansas corporation ("Seller"), under the following
circumstances;
WHEREAS, Seller owns and operates radio station KOLL (FM) operating
in Little Rock, Arkansas (the "Station"), pursuant to licenses issued by the
Federal Communications Commission (the "FCC"); and
WHEREAS, Seller desires to sell and Buyer desires to purchase
certain assets and assume certain liabilities associated with the ownership
and operation of the Station, all on the terms and subject to the conditions
set forth herein; and
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
1.1 Transfer of Assets. On the Closing Date, Seller shall sell,
assign, transfer and convey to Buyer, and Buyer shall purchase and assume from
Seller, all of the assets, properties, interests and rights of Seller of
whatsoever kind and nature, real and personal, tangible and intangible, owned
or leased by the Seller as the case may be, which are used or held for use by
or relate to the Station as the same shall exist on the Closing Date (the
"Station Assets"), including but not limited to the following (but excluding
the assets specified in Section 1.2 hereof):
1.1.1 all of Seller's rights in and to the licenses, permits and
other authorizations issued to Seller by any governmental authority and used
directly in, or relating directly to, the conduct of the business and
operations of the Station, including those issued by the FCC (the latter
hereafter referred to as the "Station Licenses") and as described more fully in
Section 7.4, along with
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renewals or modifications of such items between the date hereof and the
Closing Date as well as all of Seller's rights in and to the call letters
"KOLL (FM)";
1.1.2 all equipment, office furniture and fixtures, office materials
and supplies, inventory, spare parts and other tangible personal property of
every kind and description, owned, leased or held by Seller and used in the
conduct of the business and operations of the Station, and which are described
more fully in Section 7.7, together with any replacements of equal quality
thereof and additions thereto, made between the date hereof and the Closing
Date, and less any retirements or dispositions thereof made between the date
hereof and the Closing Date in the ordinary course of business and consistent
with past practices of the Seller;
1.1.3 all of Seller's rights in and under such contracts, agreements
or leases, written or oral, relating directly or exclusively to the conduct of
the Station ("Contracts"), and which are described more fully in Sections 7.7,
7.8 and 7.9, together with all Contracts entered into or acquired by Seller
between the date hereof and the Closing Date in the ordinary course of business
and consistent with the terms of this Agreement;
1.1.4 all of Seller's rights in any programs and programming
material of whatever form or nature owned by Seller and used directly and
exclusively in, or relating directly and exclusively to, the Station;
1.1.5 all of Seller's rights in and to the trademarks, trade names,
service marks, franchises, copyrights, including registrations and applications
for registration of any of them, jingles, logos and slogans or licenses to use
same owned or held by it and used directly and exclusively in, or relating
directly and exclusively to, the conduct of the business and operations of the
Station, as described more fully in Section 7.12, together with any associated
good will and any additions thereto between the date hereof and the Closing
Date;
1.1.6 all of Seller's rights in and to the files, records, and books
of account of the Station including, without limitation, programming
information and studies, technical information and engineering data, news and
advertising studies or consulting reports, marketing and demographic data,
sales correspondence, lists of advertisers, promotional materials, credit and
sales reports and filings with the FCC, executed copies of all written
Contracts to be assigned hereunder, logs and commercially available software
programs to the extent the same are transferable by Seller; provided,
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however, that Seller shall for a period of two (2) years following the Closing
Date have access to all of the foregoing for audit, inspection and duplication
by Seller or its designees, at Seller's expense, upon reasonable prior notice
during normal business hours; and
1.1.7 all of Seller's rights under manufacturers' and vendors'
warranties relating to items included in the Station Assets and all similar
rights against third parties relating to items included in the Station Assets.
The Station Assets shall be transferred to Buyer free and clear of
all debts, security interests, mortgages, trusts, claims, pledges, conditional
sales agreements or other liens, liabilities and encumbrances whatsoever,
other than informational filings made by equipment lessors under the Uniform
Commercial Code.
1.2 Excluded Assets. Notwithstanding anything to the contrary
contained herein, it is expressly understood and agreed that the Station
Assets shall not include the following assets along with all rights, title and
interest therein which shall be referred to as the "Excluded Assets":
1.2.1 all cash, cash equivalents or similar type investments of
Seller, such as certificates of deposit, Treasury bills and other marketable
securities on hand and/or in banks; 1.2.2 all accounts receivable or notes
receivable of Seller for services performed or provided by Seller prior to the
Closing Date;
1.2.3 all tangible and intangible personal property disposed of or
consumed in the ordinary course of business between the date of this Agreement
and the Closing Date, or as permitted under the terms hereof;
1.2.4 all Contracts that have terminated or expired prior to the
Closing Date in the ordinary course of business or as permitted hereunder;
1.2.5 Seller's corporate seal, minute books, charter documents,
corporate stock record books and such other books and records as pertain to the
organization, existence or share capitalization of Seller and duplicate copies
of such records as are necessary to enable Seller to file its tax returns and
reports as well as any other records or materials relating to Seller generally
and not involving specific aspects of the Station's operation;
1.2.6 Contracts of insurance and all insurance proceeds or claims
made by Seller relating to property or equipment repaired, replaced or restored
by Seller prior to the Closing Date;
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1.2.7 any and all other claims made by Seller with respect to
transactions prior to the Closing Date and the proceeds thereof to the extent
Seller has expended funds or incurred a loss relating to same;
1.2.8 all pension, profit sharing or cash or deferred (Section
401(k)) plans and trusts and the assets thereof and any other employee benefit
plan or arrangement and the assets thereof, if any, maintained by Seller or its
parent organization; and
1.2.9 any books and records relating to any of the foregoing.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1 Assumption of Obligations. Subject to the provisions of this
Section 2.1 and Section 2.2 andthe LMA (as defined below), on the Closing
Date, Buyer shall only assume and undertake to pay, satisfy or discharge the
liabilities, obligations and commitments of Seller arising under (i) the
Contracts described more fully in Sections 7.7, 7.8 and 7.9; (ii) all other
Contracts of Seller arising in the ordinary course of business and consistent
with past practices between the date hereof and the Closing Date, including,
but not limited to, all contracts for the sale of advertising time for cash
arising in the ordinary course of business of Seller or for consideration
other than cash such as merchandise, services or promotional consideration
("Trade Agreements") as the same may exist or arise in the ordinary course of
business; and (iii) any other Contracts entered into between the date hereof
and the Closing Date which Buyer expressly agrees in writing to assume. All of
the foregoing liabilities and obligations shall be referred to herein
collectively as the "Assumed Liabilities".
2.2 Limitation. Except as set forth in Section 2.1 hereof, Buyer
expressly does not, and shall not, assume or be deemed to assume, under this
Agreement or otherwise by reason of the transactions contemplated hereby, any
liabilities, obligations or commitments of Seller of any nature whatsoever.
Without limiting the generality of the foregoing, except as set forth in
Section 2.1, Buyer shall not assume or be liable for any liability or
obligation of Seller arising out of any contract of employment, collective
bargaining agreement, insurance, pension, retirement, deferred compensation,
incentive bonus or profit sharing or employee benefit plan or trust, or any
judgment, litigation, proceeding or claim by any person or entity relating to
the business or operation of the Station prior to the Closing Date, whether or
not such judgment, litigation, proceeding or claim is
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pending, threatened or asserted before, on or after the Closing Date.
ARTICLE 3
CONSIDERATION
3.1 Purchase Price. The aggregate consideration (the "Purchase
Price") for the transfer of the Station Assets from the Seller to the Buyer
shall be Four Million One Hundred Thousand Dollars ($4,100,000), plus the
assumption at Closing of the Assumed Liabilities, subject to the adjustments
described in Section 8.5 herein.
3.2 Payment. Buyer shall pay to Seller the Purchase Price as
follows: (i) $600,000 at Closing by wire transfer in immediately available
funds to a bank designated in writing by Seller and (ii) $3,500,000 in
accordance with that certain Local Market Agreement by and between the Seller
and the Buyer as of March 15, 1996 (the "LMA").
3.3 [RESERVED]
3.4 Proration of Revenue and Expenses.
3.4.1 Except as otherwise provided herein or as limited by the LMA,
all expenses incurred and all revenue earned arising from the conduct of the
business and operations of the Station shall be prorated between Buyer and
Seller in accordance with generally accepted accounting principles as of 11:59
p.m., local time, on the date immediately preceding the Closing Date. Such
prorations shall include, without limitation, all ad valorem, real estate and
other property taxes (but excluding taxes arising by reason of the transfer of
the Station Assets as contemplated hereby, which shall be paid as set forth in
Article 13 of this Agreement), business and license fees, music and other
license fees (including any retroactive adjustments thereof), wages and
salaries of employees, including accruals up to the Closing Date for bonuses,
commissions, vacations and sick pay, and related payroll taxes, utility
expenses, time sales agreements, contracts for the sale of advertising for
consideration other than cash ("Trade Agreements") to the extent provided in
Section 3.5.2 hereof, rents and similar prepaid and deferred items attributable
to the ownership and operation of the Station. Real estate taxes shall be
apportioned on the basis of taxes assessed for the preceding year, with a
reapportionment as soon as the new tax rate and valuation can be ascertained.
3.4.2 The prorations and adjustments contemplated by this Section,
to the extent
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practicable, shall be made on the Closing Date. As to those prorations and
adjustments not capable of being ascertained on the Closing Date, an
adjustment and proration shall be made within ninety (90) calendar days of the
Closing Date.
3.4.3 In the event of any disputes between the parties as to such
adjustments, the amounts not in dispute shall nonetheless be paid at the time
provided in Section 3.4.2 and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the parties, and
the fees and expenses of such accountant shall be paid one-half by Seller and
one-half by Buyer.
ARTICLE 4
CLOSING
4.1 Closing. Except as otherwise mutually agreed upon by Seller and
Buyer, the consummation of the transactions contemplated herein (the
"Closing") shall occur within ten (10) business days following the date on
which the last of the FCC Consents (as defined in Section 5.1) shall have
become a Final Order (as defined below), unless Buyer in its sole discretion
shall have waived the condition that such consent shall have become final (the
"Closing Date"). For purposes of this Agreement, the FCC Consents shall be
deemed to be a Final Order when (i) they have not been vacated, reversed,
stayed, set aside, annulled or suspended; (ii) they are not the subject of any
pending timely appeal, request for stay or petition for rehearing,
reconsideration or review by any party or by the FCC on its own motion; and
(iii) they are actions by the FCC as to which the time for filing any such
appeal, request, petition or similar document or for the reconsideration or
review by the FCC on its own motion under the Communications Act of 1934 and
the rules and regulations of the FCC has expired. The Closing shall be held at
such offices as shall be specified by Buyer in New York City or at such other
place as the parties shall mutually agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
5.1 FCC Consents. It is specifically understood and agreed by Buyer
and Seller that the Closing and the assignment of the Station Licenses and the
transfer of the Station Assets is expressly conditioned on and is subject to
the prior consent and approval of the FCC and any reasonably acceptable
conditions imposed in such approval, which conditions are not deemed, in
Buyer's sole
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judgement, material or adverse to Buyer's interest in the Station
Assets (the "FCC Consents").
5.2 FCC Application. Seller and Buyer shall hereafter file with the
FCC the requisite applications for assignment of the Station Licenses ("FCC
Applications") from Seller to Buyer within ten (10) business days following the
date of this Agreement. Buyer shall have the right to make such amendments to
the FCC Applications and waiver requests as shall be necessary to reflect
changes that may occur in the structure of Buyer. Thereafter, Seller and Buyer
shall prosecute the FCC Applications with all reasonable diligence and
otherwise use their best efforts to obtain the grant of the FCC Applications as
expeditiously as practicable (but neither Seller nor Buyer shall have any
obligation to satisfy complainants or the FCC by taking any steps which would
have a material adverse effect upon Seller or Buyer or upon any affiliated
entity). If the FCC Consents impose any condition on either party hereto, such
party shall use its best efforts to comply with such condition; provided,
however, that neither party shall be required hereunder to comply with any
condition that would have a material adverse effect upon it or any affiliated
entity. If reconsideration or judicial review is sought with respect to the FCC
Consents, the party affected shall vigorously oppose such efforts for
reconsideration or judicial review; provided, however, that nothing herein
shall be construed to limit either party's right to terminate this Agreement
pursuant to Article 17 hereof.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to
Seller, each of which is true and correct on the date hereof, shall remain
true and correct through and including the Closing Date, shall be unaffected
by any notice to Seller other than in the Disclosure Schedule (as defined
herein) and shall survive the Closing to the extent provided in Section 16.4.
6.1 Organization and Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware, and as of the Closing Date Buyer shall be duly qualified to do
business and be in good standing in the States of Arkansas.
6.2 Authorization and Binding Obligation. Buyer has all necessary
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and to own or lease the Broadcast Assets and
to carry on the business of the Station as they are now being conducted, and
Buyer's execution, delivery and performance of this Agreement and the
transactions
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contemplated hereby have been duly and validly authorized by all necessary
action on its part. This Agreement has been duly executed and delivered by
Buyer and this Agreement constitutes, and the other agreements to be executed
in connection herewith will constitute, the valid and binding obligation of
Buyer, enforceable in accordance with their terms, except as limited by laws
affecting creditors' rights or equitable principles generally.
6.3 Absence of Conflicting Agreements or Required Consents. Except
as set forth in Article 5 hereof with respect to governmental consents, the
execution, delivery and performance of this Agreement by Buyer: (a) does not
require the consent of any third party; (b) will not violate any applicable
law, judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which Buyer is a party; and (c) will not, either
alone or with the giving of notice or the passage of time, or both, conflict
with, constitute grounds for termination of or result in a breach of the
terms, conditions or provisions of, or constitute a default under, any
agreement, instrument, license or permit to which Buyer is now subject.
6.4 Litigation and Compliance with Law. There is no litigation,
administrative, arbitration or other proceeding, or petition, complaint or
investigation before any court or governmental body, pending against Buyer or
any of its principals that would adversely affect Buyer's ability to perform
its obligations pursuant to this Agreement or the agreements to be executed in
connection herewith. There is no violation of any law, regulation or ordinance
or any other requirement of any governmental body or court which would have a
material adverse effect on Buyer or its ability to perform its obligations
pursuant to this Agreement or the agreements to be executed in connection
herewith.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Buyer, each of which is true and correct on the date hereof, shall remain true
and correct to and including the Closing Date, shall be unaffected by any
notice to Buyer other than in the Disclosure Schedule (as defined herein) and
shall survive the Closing to the extent provided in Section 16.4. Such
representations and warranties are subject to, and qualified by, any fact or
facts disclosed in the appropriate section of the separate Disclosure Schedule
which is hereby made a part of this Agreement (the "Disclosure
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Schedule").
7.1 Organization and Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Arkansas, and has the corporate power and authority to own, lease and
operate the Station Assets and to carry on the business of the Station as now
being conducted and as proposed to be conducted by Seller between the date
hereof and the Closing Date.
7.2 Authorization and Binding Obligation. Seller has the corporate
power and authority to enter into and perform this Agreement and the
transactions contemplated hereby, and Seller's execution, delivery and
performance of this Agreement, and the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action on its
part. This Agreement has been duly executed and delivered by Seller and this
Agreement and the agreements to be executed in connection herewith will
constitute the valid and binding obligation of Seller enforceable in
accordance with their terms, except as limited by laws affecting the
enforcement of creditor's rights or equitable principles generally.
7.3 Absence of Conflicting Agreements or Required Consents. Except
as set forth in Article 5 hereof with respect to governmental consents and as
set forth in Sections 7.7, 7.8 or 7.9 of the Disclosure Schedule with respect
to consents required in connection with the assignment of certain Contracts,
the execution, delivery and performance of this Agreement by Seller: (a) does
not require the consent of any third party; (b) will not violate any
applicable law, judgment, order, injunction, decree, rule, regulation or
ruling of any governmental authority to which Seller is a party or by which it
or the Station Assets are bound; (c) will not, either alone or with the giving
of notice or the passage of time, or both, conflict with, constitute grounds
for termination of or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any Contract, agreement,
instrument, license or permit to which Seller or the Station Assets is now
subject; and (d) will not result in the creation of any lien, charge or
encumbrance on any of the Station Assets, except to the extent that any such
matter or matters referred to in sub parts (a) through (d) would not in the
aggregate have a material adverse effect on the Buyer.
7.4 Government Authorizations. Section 7.4 of the Disclosure
Schedule contains a true and complete list of the Station Licenses and other
material licenses, permits or other authorizations
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from governmental and regulatory authorities which are required for the lawful
conduct of the business and operations of the Station in the manner and to the
full extent they are presently conducted. Seller is the authorized legal
holder of the Station Licenses and other licenses, permits and authorizations
listed in said Section 7.4, none of which is subject to any restrictions or
condition which would limit in any respect the full operation of the Station
as now operated. There are no applications, complaints or proceedings pending
or, to the best of Seller's knowledge, threatened as of the date hereof before
the FCC relating to the business or operations of the Station other than
applications, complaints or proceedings which generally affect the
broadcasting industry. Seller has delivered to Buyer true and complete copies
of the Station Licenses, including any and all amendments and other
modifications thereto. The Station Licenses are in good standing, are in full
force and effect and are unimpaired by any act or omission of Seller or its
officers, directors or employees; and the operation of the Station is in
accordance with the Station Licenses and the underlying construction permits.
No proceedings are pending or, to the knowledge of Seller, are threatened with
respect to the Station Licenses which may result in the revocation,
modification, non-renewal or suspension of any of the Station Licenses, the
denial of any pending applications, the issuance of any cease and desist
order, the imposition of any administrative actions by the FCC with respect to
the Station Licenses or which may affect Buyer's ability to continue to
operate the Station as they are currently operated. Seller has no reason to
believe that the Station Licenses will not be renewed in their ordinary
course. All material reports, forms and statements required to be filed by
Seller with the FCC with respect to the Station since the grant of the last
renewal of the Station Licenses have been filed and are substantially complete
and accurate. To the best knowledge of Seller, there are no facts which, under
the Communications Act of 1934, as amended, or the existing Rules and
Regulations of the FCC, would disqualify Seller as an assignor of the Station
Licenses.
7.5 Compliance with FCC Regulations. The operation of the Station
and all of the Station Assets are in compliance in all material respects with
(i) all material applicable engineering standards required to be met under
applicable FCC rules, and (ii) all other applicable rules, regulations,
requirements and policies of the FCC, including, but not limited to, ANSI
Radiation Standards C95.1 - 1982 to the extent required to be met under
applicable FCC rules and regulations; and there are no existing claims known
to Seller to the contrary.
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7.6 Taxes. Seller has filed all federal, state, local and foreign
income, franchise, sales, use, property, excise, payroll and other tax returns
required by law and has paid in full all taxes, estimated taxes, interest,
assessments, and penalties due and payable. All returns and forms which have
been filed have been true and correct in all material respects and no tax or
other payment in a material amount other than as shown on such returns and
forms are required to be paid and have been paid by Seller. There are no
present disputes as to taxes of any nature payable by Seller which in any
event could materially adversely affect any of the Station Assets or the
operation of the Station.
7.7 Personal Property.
7.7.1 Section 7.7 of the Disclosure Schedule contains a list of all
material tangible personal property and assets owned and leased by the Seller
and used primarily or exclusively in the conduct of the business and operations
of the Station. Except as may be subject to lease agreements of the Seller (the
"Personal Property Contracts"), Seller owns and has, and will have on the
Closing Date, good and marketable title to all such property (and to all other
tangible personal property and assets to be transferred to Buyer hereunder),
and none of such property is, or at the Closing will be, subject to any
security interest, mortgage, pledge, conditional sales agreement or other lien
or encumbrance. All of the items of the tangible personal property and assets
included in the Station Assets are in all material respects in good operating
condition (ordinary wear and tear excepted) and are available for immediate use
in the conduct of the business and operations of the Station. The technical
equipment, constituting a part of the tangible personal property transferred
hereunder, has been maintained in accordance with industry practice and is in
good operating condition and complies in all material respects with all
applicable rules and regulations of the FCC and the terms of the Station
Licenses. The properties listed in said Section 7.7 include all such properties
necessary to conduct in all material respects the business and operations of
the Station as now conducted.
7.7.2 The Personal Property Contracts listed on such Section 7.7
constitute valid and binding obligations of Seller and, to the best of Seller's
knowledge, of all other persons purported to be parties thereto and are in full
force and effect as of the date hereof and will on the Closing Date constitute
valid and binding obligations of Seller and, to the best of Seller's knowledge,
of all other persons purported to be parties thereto and shall be in full force
and effect. Seller is not
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in default under any of such Personal Property Contracts and has not received
or given written notice of any default thereunder from or to any of the other
parties thereto. Seller will use reasonable efforts to obtain valid and
binding third-party consents from all required third parties to the Personal
Property Contracts to be conveyed and assigned to Buyer as part of the Station
Assets, so as to insure the Buyer will enjoy all of the privileges of Seller
thereunder. Except as set forth in Section 7.7 of the Disclosure Schedule,
Seller has full legal power and authority to assign its rights under the
Personal Property Contracts to Buyer in accordance with this Agreement on
terms and conditions no less favorable than those in effect on the date
hereof, and such assignment will not affect the validity, enforceability and
continuity of any of the Personal Property Contracts.
7.8 Real Property.
7.8.1 Section 7.8 to the Disclosure Schedule contains a complete and
accurate list of all real property owned and/or leased by the Seller and used
primarily or exclusively by the Station and all agreements, leases and
contracts of Seller relating to the tower, transmitter, studio site and offices
of the Station (collectively the "Real Estate Contracts") and a summary of the
applicable leases.
7.8.2 The Real Estate Contracts listed on such Section 7.8
constitute valid and binding obligations of Seller and, to the best of Seller's
knowledge, of all other persons purported to be parties thereto and are in full
force and effect as of the date hereof and will on the Closing Date constitute
valid and binding obligations of Seller and, to the best of Seller's knowledge,
of all other persons purported to be parties thereto and shall be in full force
and effect. Seller is not in default under any of such Real Estate Contracts
and has not received or given written notice of any default thereunder from or
to any of the other parties thereto. Seller will use reasonable efforts to
obtain valid and binding third-party consents from all required third parties
to the Real Estate Contracts to be conveyed and assigned to Buyer as part of
the Station Assets, so as to insure that Buyer will enjoy all of the privileges
of Seller thereunder. Except as set forth in Section 7.8 of the Disclosure
Schedule, Seller has full legal power and authority to assign its rights under
the Real Estate Contracts to Buyer in accordance with this Agreement on terms
and conditions no less favorable than those in effect on the date hereof, and
such assignment will not affect the validity, enforceability and continuity of
any of the Real Estate Contracts.
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7.9 Contracts. Section 7.9 of the Disclosure Schedule lists all
Contracts as of the date of this Agreement which shall be assumed by the Buyer
as of the Closing Date, except contracts entered into in the ordinary course
of business (i) of less than three (3) months duration and which impose
monetary obligations of less than Five Thousand Dollars ($5,000) each or Fifty
Thousand Dollars ($50,000) in the aggregate, (ii) for the sale or sponsorship
of broadcast time on the Station for cash, for which no prepayment has been
received and with not more than twelve (12) months remaining in their terms,
or (iii) contracts which are currently scheduled to expire prior to Closing
Date and for which Buyer will assume no obligations. Those Contracts requiring
the consent of a third party to assignment which Seller and Buyer agree are
critical to the consummation of the transactions contemplated hereby are
identified as "Material Contracts". Notwithstanding the foregoing, if it is
discovered before Closing that Seller failed to list a contract in said
Section 7.9 which was required to be listed, then the Buyer may elect in its
sole discretion to accept or reject such contract.
7.10 Status of Contracts. Except as noted in Section 7.9 of the
Disclosure Schedule, Seller has delivered to Buyer true and complete copies of
all written Material Contracts, including any and all amendments and other
modifications to such Material Contracts. All Material Contracts are valid,
binding and enforceable by Seller in accordance with their respective terms,
except as limited by laws affecting creditors' rights or equitable principles
generally. To the best of Seller's knowledge, Seller has complied in all
material respects with all Material Contracts and is not in default beyond any
applicable grace periods under any of the Material Contracts, and no other
contracting party is in default under any of the Material Contracts. Except as
set forth in Section 7.9 of the Disclosure Schedule, Seller has full legal
power and authority to assign its respective rights under the Material
Contracts to Buyer in accordance with this Agreement on terms and conditions
no less favorable than those in effect on the date hereof, and such assignment
will not affect the validity, enforceability and continuity of any of the
Material Contracts.
7.11 Environmental Matters. Seller has not unlawfully disposed of
any hazardous waste or hazardous substance including Polychlorinated Byphenyls
("PCBs") in a manner which has caused, or could cause, Buyer to incur a
material liability under applicable law in connection therewith; and Seller
warrants that the technical equipment included in the Station Assets does not
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contain any PCBs which are required by law to be removed and if any equipment
does contain PCBs, that such equipment is stored and maintained in compliance
with applicable law. To the best of Seller's knowledge, Seller has complied in
all material respects with all federal, state and local environmental laws,
rules and regulations applicable to the Station and its operations, including
but not limited to the FCC's guidelines regarding RF radiation. No hazardous
waste has been disposed of by Seller, and to the best of Seller's knowledge,
no hazardous waste has been disposed of by any other person, on the real
estate occupied by the Station or its transmitters. As used herein, the term
"hazardous waste" shall mean as defined in the Resource Conservation and
Recovery Act (RCRA) as amended and in the equivalent state statute under the
law of the state in which such real estate is located. Seller shall, at the
request of Buyer and at its own expense, cause an engineering firm to conduct
Phase I environmental studies of the real property and transmitting equipment
used by Seller in connection with the operation of the Station. In the event
that the Phase I environmental studies conducted by Seller discloses a
potential material environmental liability, whether fixed or contingent, and
such liability costs less than One Hundred Fifty Thousand Dollars ($150,000)
to cure, Seller shall promptly begin remedial action to cure the condition
giving rise to such liability and shall either cure such condition prior to
Closing or reduce the Purchase Price by the amount agreed to by the parties as
being adequate to cure such condition. However, in the event such remedial
action is likely to cost Seller in excess of One Hundred Fifty Thousand
Dollars ($150,000), Buyer or Seller may terminate this Agreement prior to
Closing and neither party shall have any liability to the other as a result of
such termination, other than the release of the Escrow Account to the Buyer,
unless: (a) Seller shall at its sole expense cure the condition giving rise to
such liability prior to Closing; (b) Seller shall reduce the Purchase Price by
the amount agreed to by the parties as being adequate to cure such condition;
or (c) as to contingent liabilities, Seller shall provide (i) collateral
acceptable to the Buyer or a security bond in such reasonably adequate amount
as shall be sufficient to cover such liability, which collateral or security
bond shall remain in place for a period of twenty (20) years from and after
the Closing, or (ii) such other resolution mutually agreed to by the Buyer and
the Seller and reasonably acceptable to Buyer's financing sources.
7.12 Copyrights, Trademarks and Similar Rights. Section 7.12 of the
Disclosure Schedule is a true and complete list, in all material respects, of
all copyrights, trademarks, trade names,
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licenses, patents, permits, jingles and other similar intangible property
rights and interests applied for, issued to or owned by the Seller or under
which Seller is a licensee or franchisee and used exclusively or primarily in
the conduct of the business and operations of the Station referred to in
Section 1.1.5 hereof.
All of such rights and interests are issued to or owned by Seller,
or if licensed or franchised to Seller, to the best of Seller's knowledge, are
valid and in good standing and uncontested. Seller has delivered or made
available to Buyer copies of all material documents, if any, establishing such
rights, licenses or other authority. Seller has received no written notice and
has no knowledge of any infringements or unlawful use of such property. The
properties listed in Section 7.12 of the Disclosure Schedule include all such
properties necessary to conduct in all material respects the business and
operations of the Station as now conducted.
7.13 [RESERVED]
7.14 Personnel Information Seller is not a party to any Contract
with any labor organization, nor has Seller agreed to recognize any union or
other collective bargaining unit, nor has any union or other collective
bargaining unit been certified as representing any of Seller's employees.
Seller has no knowledge of any organizational effort currently being made or
threatened by or on behalf of any labor union with respect to employees of
Seller. During the past three (3) years, Seller has not experienced any
strikes, work stoppages, grievance proceedings, claims of unfair labor
practices filed or other significant labor difficulties of any nature. Seller,
to the best of its knowledge, has complied in all material respects with all
laws relating to the employment of labor, including, without limitation, the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
those laws relating to wages, hours, collective bargaining, unemployment
insurance, workers' compensation, equal employment opportunity and payment and
withholding of taxes.
7.15 Litigation. Seller is subject to no judgment, award, order,
writ, injunction, arbitration decision or decree materially adversely affecting
the conduct of the business of the Station or the Station Assets, and there is
no litigation or proceeding or, to the best of Seller's knowledge,
investigation pending or, to the best of Seller's knowledge, threatened against
Seller or the Station in any federal, state or local court, or before any
administrative agency or arbitrator (including,
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without limitation, any proceeding which seeks the forfeiture of, or opposes
the renewal of, any of the Station Licenses), or before any other tribunal
duly authorized to resolve disputes, which would reasonably be expected to
have any material adverse effect upon the business, property, assets or
condition (financial or otherwise) of the Station or which seeks to enjoin or
prohibit, or otherwise questions the validity of, any action taken or to be
taken pursuant to or in connection with this Agreement. In particular, but
without limiting the generality of the foregoing, there are no applications,
complaints or proceedings pending or, to the best of Seller's knowledge,
threatened before the FCC or any other governmental organization with respect
to the business or operations of the Station other than applications,
complaints or proceedings which affect the broadcasting industry generally.
7.16 Compliance With Laws. Seller has not received any notice
asserting any non-compliance by it in connection with the business or
operation of the Station with any applicable statute, rule or regulation,
federal, state or local. Seller is not in default with respect to any
judgment, order, injunction or decree of any court, administrative agency or
other governmental authority or any other tribunal duly authorized to resolve
disputes in any respect material to the transactions contemplated hereby.
Seller is in compliance in all material respects with all laws, regulations
and governmental orders applicable to the conduct of the business and
operations of the Station, the failure to comply with which would have a
material adverse effect on the business, operations or financial condition of
the Station, and its present use of the Station Assets does not violate any of
such laws, regulations or orders, violation of which would have a material
adverse effect on the Station Assets or Station's operation.
7.17 [RESERVED]
7.18 Accuracy of Information. No written statements made by Seller
herein and no information provided by Seller herein or in the documents,
instruments or other written communications made or delivered directly by
Seller to Buyer in connection with the negotiations covering the purchase and
sale of the Station Assets contains any untrue statement of a material fact or
omits a material fact necessary to make the statements contained therein or
herein not misleading and there is no fact known to Seller which relates to
any information contained in any such written document, instrument or
communications which Seller has not disclosed to Buyer in writing which
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materially affects adversely the Station or the Station Assets. To the extent
that a representation or other information is made to the Seller's knowledge
or is otherwise qualified by its terms, this representation shall not be
interpreted to expand such limitations or qualifications.
ARTICLE 8
COVENANTS OF BUYER
8.1 Closing. On the Closing Date, Buyer or its assignee shall
purchase the Station Assets from Seller as provided in Article 1 hereof and
shall assume the Assumed Liabilities of Seller as provided in Article 2
hereof.
8.2 Notification. Buyer shall notify Seller of any litigation,
arbitration or administrative proceeding pending or, to its knowledge,
threatened against Buyer which challenges the transactions contemplated
hereby.
8.3 No Inconsistent Action. Buyer shall not take any other action
which is materially inconsistent with its obligations under this Agreement.
8.4 Buyer's Post-Closing Covenant. Buyer, for a period of two (2)
years following the Closing Date, shall make available for audit and
inspection by Seller and its representatives for any reasonable purpose all
records, files, documents and correspondence transferred to it hereunder.
Buyer shall at no time dispose of or destroy any such records, files,
documents and correspondence without giving sixty (60) days prior notice to
Seller to permit Seller, at its expense, to examine, duplicate or take
possession of and title to such records, files, documents and correspondence.
All personnel records shall be maintained as confidential if required by any
applicable state or federal law.
8.5 [RESERVED]
ARTICLE 9
COVENANTS OF SELLER
9.1 Seller's Pre-Closing Covenants. Seller covenants and agrees
with respect to the Station that between the date hereof and the Closing Date,
except as expressly permitted by this Agreement or with the prior written
consent of Buyer, it shall act in accordance with the following:
9.1.1 Except as may be limited by Buyer's activities pursuant to the
LMA, Seller shall conduct the business and operations of the Station in the
ordinary and prudent course of
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business and with the intent of preserving the ongoing operations and assets
of the Station, including, but not limited to, maintaining the independent
identity of the Station, retaining the current format of the Station and using
its best efforts to retain the services of key employees.
9.1.2 Seller shall operate the Station in all material respects in
accordance with FCC Rules and Regulations and the Station Licenses and with all
other laws, regulations, rules and orders, and shall not cause or permit by any
act, or failure to act, any of the Station Licenses to expire, be surrendered,
adversely modified, or otherwise terminated, or the FCC to institute any
proceedings for the suspension, revocation or adverse modification of any of
the Station Licenses, or fail to prosecute with due diligence any pending
applications to the FCC.
9.1.3 Should any fact relating to Seller which would cause the FCC
to deny its consent to the transactions contemplated by this Agreement come to
Seller's attention, Seller shall promptly notify Buyer thereof and shall use
its reasonable efforts to take such steps as may be necessary to remove any
such impediment to the transactions contemplated by this Agreement.
9.1.4 Seller shall not other than in the ordinary course of business
or after receiving Buyer's prior written approval (i) sell or dispose of or
commit to sell or dispose of any of the Station Assets; (ii) grant or agree to
grant any general increases in the rates of salaries or compensation payable to
employees of the Station; (iii) grant or agree to grant any specific bonus or
increase to any executive or management employee of the Station; or (iv)
provide for any new pension, retirement or other employment benefits for
employees of the Station or any increases in any existing benefits.
9.1.5 Seller shall provide Buyer prompt written notice of any change
in any of the information contained in the representations and warranties made
in Article 7 hereof or any Exhibits or Schedules herein or attached hereto.
9.1.6 Seller may enter into or renew any contract, agreement,
commitment or other understanding or arrangement in the ordinary course of
business, provided, however, that except with respect to contracts for the sale
of time for cash and except for Trade Agreements, the liability under said
contracts to be assumed by Buyer at Closing shall not exceed Five Thousand
Dollars ($5,000) per contract or Fifty Thousand Dollars ($50,000) in the
aggregate, without the written approval of the Buyer.
9.1.7 The Seller shall give the Buyer and the Buyer's counsel,
accountants, engineers
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and other representatives, full and reasonable access during normal business
hours to all of the Station' personnel, properties, books, contracts, reports
and records including financial information and tax returns with supporting
work papers relating to the Station, to all real estate buildings and
equipment relating to the Station, and to the Station's employees in order
that the Buyer may have full opportunity to make such investigation as it
desires of the affairs of the Station. Seller shall to furnish Buyer with
information and copies of all documents and agreements including but not
limited to financial and operating data and other information concerning the
financial condition, results of operations and business of the Seller and the
Station, that the Buyer may reasonably request in order to complete the
Buyer's due diligence examination of the Station. The rights of the Buyer
under this Section shall not be exercised in such a manner as to materially
interfere with the business of the Station.
9.1.8 Notwithstanding anything in this Agreement to the contrary,
Seller may enter into any contract without the consent of Buyer, but if any
such contract is outside the scope of the restrictions set forth in this
Section 9.1, Buyer shall not be obligated to accept and assume such contract at
Closing.
9.1.9 Seller shall use its best efforts to maintain the employment
at the Station and to renew, in accordance with this Agreement, the existing
employment contracts of the employees listed in Section 7.14 of the Disclosure
Schedule.
9.1.10 The Seller shall cooperate with the Buyer by providing the
Buyer with such financial and accounting records as Buyer may reasonably
request in connection with the preparation of financial statements of the
Station.
9.2 Notification. Seller shall notify Buyer of any material
litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Seller which challenges the transactions
contemplated hereby.
9.3 No Inconsistent Action. Seller shall not take any action which
is materially inconsistent with its obligations under this Agreement.
9.4 Closing Covenant. On the Closing Date, Seller shall transfer,
convey, assign and deliver to Buyer the Station Assets and the Assumed
Liabilities as provided in Articles 1 and 2 of this Agreement.
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ARTICLE 10
JOINT COVENANTS
Buyer and Seller covenant and agree that between the date hereof
and the Closing Date, they shall act in accordance with the following:
10.1 Conditions. If any event should occur, either within or
without the control of any party hereto, which would prevent fulfillment of
the conditions upon the obligations of any party hereto to consummate the
transactions contemplated by this Agreement, the parties hereto shall use
their best efforts to cure the event as expeditiously as possible.
10.2 Confidentiality. Buyer and Seller shall each keep confidential
all information obtained by it with respect to the other in connection with
this Agreement and the negotiations preceding this Agreement, and will use
such information solely in connection with the transactions contemplated by
this Agreement, and if the transactions contemplated hereby are not
consummated for any reason, each shall return to the other, without retaining
a copy thereof, any schedules, documents or other written information obtained
from the other in connection with this Agreement and the transactions
contemplated hereby. Notwithstanding the foregoing, neither party shall be
required to keep confidential or return any information which (i) is known or
available through other lawful sources, not bound by a confidentiality
agreement with the disclosing party; (ii) is or becomes publicly known through
no fault of the receiving party or its agents; (iii) is required to be
disclosed pursuant to an order or request of a judicial or governmental
authority (provided the disclosing party is given reasonable prior notice) or
pursuant to the requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934; or (iv) is independently acquired or developed by such
party without violating any of the provision of this Section 10.2.
10.3 Cooperation. Buyer and Seller shall cooperate fully with each
other in taking any actions, including actions to obtain the required consent
of any governmental instrumentality or any third party necessary or helpful to
accomplish the transactions contemplated by this Agreement; provided, however,
that no party shall be required to take any action which would have a material
adverse effect upon it or any affiliated entity.
10.4 Control of Station. Buyer shall not, directly or indirectly,
control, supervise or direct the operations of the Station. Such operations,
including complete control and supervision of all
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Station programs, employees and policies, shall be the sole
responsibility of Seller.
10.5 Consents to Assign. To the extent that any Contract is not
capable of being sold, assigned, transferred, delivered or subleased without
the waiver or consent of any third person (including a government or
governmental unit), or if such sale, assignment, transfer, delivery or sublease
or attempted sale, assignment, transfer, delivery or sublease would constitute
a breach thereof or a violation of any law or regulation, this Agreement and
any Assignment executed pursuant hereto shall not constitute a sale,
assignment, transfer, delivery or sublease or an attempted sale, assignment,
transfer, delivery or sublease thereof. In those cases where consents,
assignments, releases and/or waivers have not been obtained at or prior to the
Closing Date to the transfer and assignment to the Buyer of the Contracts, this
Agreement and any Assignment executed pursuant hereto, to the extent permitted
by law, shall constitute an equitable assignment by Seller to the Buyer of all
of Seller's rights, benefits, title and interest in and to the Contracts, and
where necessary or appropriate, the Buyer shall be deemed to be the Seller's
agent for the purpose of completing, fulfilling and discharging all of Seller's
rights and liabilities arising after the Closing Date under such Seller
Contracts. Seller shall use its reasonable efforts to provide the Buyer with
the benefits of such Contracts (including, without limitation, permitting the
Buyer to enforce any rights of Seller arising under such Contracts), and the
Buyer shall, to the extent the Buyer is provided with the benefits of such
Contracts, assume, perform and in due course pay and discharge all debts,
obligations and liabilities of Seller under such Contracts.
10.6 Bulk Sales Laws. The Buyer hereby waives compliance by Seller
with the provisions of the "bulk sales" or similar laws of any state. Seller
agrees to indemnify the Buyer and hold it harmless against any and all claims,
losses, damages, liabilities, costs and expenses incurred by the Buyer or any
affiliate as a result of any failure to comply with any "bulk sales" or
similar laws.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
11.1 Representations, Warranties and Covenants.
11.1.1 All representations and warranties of Seller made in this
Agreement shall be
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true and complete in all material respects as of the date hereof and on and as
of the Closing Date as if made on and as of that date, except for changes
expressly permitted or contemplated by the terms of this Agreement.
11.1.2 All of the terms, covenants and conditions to be complied
with and performed by Seller on or prior to Closing Date shall have been
complied with or performed in all material respects.
11.2 Governmental Consents. The FCC Consents shall have become a
Final Order, or such condition shall have been waived by Buyer.
11.3 Governmental Authorizations. Seller shall be the holder of the
Station Licenses and all other material licenses, permits and other
authorizations listed in Section 7.4 of the Disclosure Schedule, and there
shall not have been any modification of any of such licenses, permits and
other authorizations which has a material adverse effect on the Station or the
conduct of its business and operations. No proceeding shall be pending which
seeks or the effect of which reasonably could be to revoke, cancel, fail to
renew, suspend or modify materially and adversely the Station Licenses or any
other material licenses, permits or other authorizations.
11.4 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered
against, any party hereto which would render it unlawful, as of the Closing
Date, to effect the transactions contemplated by this Agreement in accordance
with its terms.
11.5 Legal Opinion. Seller shall have delivered to Buyer a written
opinion of its counsel, dated as of the Closing Date, addressed to Buyer in
the form attached hereto as Exhibit A.
11.6 FCC Legal Opinion. Seller shall have furnished Buyer a written
opinion of Seller's FCC counsel, dated the Closing Date, addressed to Buyer in
the form attached hereto as Exhibit B.
11.7 Third-Party Consents. Seller shall have obtained and shall
have delivered to Buyer all third-party consents to the Material Contracts and
to all other Contracts assigned or transferred hereunder, except those the
absence of which will not have a material adverse effect on the operation of
the Station.
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11.8 Closing Documents. Seller shall have delivered or caused to be
delivered to Buyer, on the Closing Date, all deeds, bills of sale,
endorsements, assignments and other instruments of conveyance and transfer
reasonably satisfactory in form and substance to Buyer, effecting the sale,
transfer, assignment and conveyance of the Station Assets to Buyer, including,
without limitation, each of the documents required to be delivered pursuant to
Article 15.
11.9 Financing Statements. Seller shall have delivered to Buyer
releases, if any, under the Uniform Commercial Code of any financing
statements filed against any Station Assets in the jurisdiction in which the
Station Assets are and have been located since such Station Assets were
acquired by Seller, except for informational filings made by equipment lessors
on lease obligations being specifically assumed by Buyer as set forth in
Section 7.9 of the Disclosure Schedule.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of each of the following
conditions:
12.1 Representations, Warranties and Covenants.
12.1.1 All representations and warranties of Buyer made in this
Agreement shall be true and complete in all material respects as of the date
hereof and on and as of the Closing Date as if made on and as of that date,
except for changes expressly permitted or contemplated by the terms of this
Agreement.
12.1.2 All the terms, covenants and conditions to be complied with
and performed by Buyer on or prior to the Closing Date shall have been complied
with or performed in all material respects.
12.2 Governmental Consents. The FCC Consents shall have become a
Final Order, or such condition shall have been waived by Buyer.
12.3 Adverse Proceedings. No suit, action, claim or governmental
proceeding shall be pending against, and no other, decree or judgment of any
court, agency or other governmental authority shall have been rendered against
any party hereto which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
12.4 Legal Opinion. Buyer shall have delivered to Seller an opinion
of its counsel, dated as
23
<PAGE>
of the Closing Date, addressed to Seller in the form attached hereto
as Exhibit C.
ARTICLE 13
TRANSFER TAXES; FEES AND EXPENSES
13.1 Expenses. Except as set forth in Section 13.2 and 13.3 hereof,
each party hereto shall be solely responsible for all costs and expenses
incurred by it in connection with the negotiation, preparation and performance
of and compliance with the terms of this Agreement.
13.2 Transfer Taxes and Similar Charges. All costs of transferring
the Station Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be borne equally by Buyer and Seller.
13.3 Governmental Filing or Grant Fees. Any filing or grant fees
imposed by any governmental authority the consent of which is required to the
transactions contemplated hereby shall be borne equally by Buyer and Seller.
ARTICLE 14
COMMISSIONS OR FINDER'S FEE
14.1 Buyer's Representation and Agreement to Indemnify. Buyer
represents and warrants to Seller that neither it nor any person or entity
acting on its behalf has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity except to The Sillerman Companies. Buyer further agrees to
indemnify, defend and hold Seller harmless from and against any and all
claims, losses, liabilities and expenses (including reasonable attorney's
fees) arising out of a claim by The Sillerman Companies or any other person or
entity based on any such arrangement or agreement made or alleged to have been
made by Buyer. Buyer shall be solely responsible for any fees due to The
Sillerman Companies.
14.2 Seller's Representation and Agreement to Indemnify. Seller
represents and warrants to Buyer that neither it nor any person or entity
acting on its behalf has agreed to pay a commission, finder's fee or similar
payment in connection with this Agreement or any matter related hereto to any
person or entity. Seller further agrees to indemnify, defend and hold Buyer
harmless from and against any and all claims, losses, liabilities and expenses
(including reasonable attorney's fees) arising out of a claim by any person or
entity based on any such arrangement or agreement made or alleged to have been
made by Seller.
24
<PAGE>
ARTICLE 15
DOCUMENTS TO BE DELIVERED AT CLOSING
15.1 Seller's Documents. At the Closing, Seller shall deliver or
cause to be delivered to Buyer the following:
15.1.1 Governmental Certificates showing that Seller is duly
incorporated and in good standing in the State of Arkansas dated not more than
forty-five (45) days before the Closing Date;
15.1.2 Bill of Sale, assignments and other good and sufficient
instruments of conveyance, transfer and assignment, all in form and substance
reasonably satisfactory to counsel for Buyer, as shall be effective to vest in
Buyer or its permitted assignees, good and marketable title in and to the
Station Assets transferred pursuant to this Agreement in accordance with the
terms of this Agreement;
15.1.3 At the time and place of Closing, originals or copies of all
program, operations, transmissions, or maintenance logs and all other records
required to be maintained by the FCC with respect to the Station, including the
Station's public file, shall be left at the Station and thereby delivered to
Buyer;
15.1.4 The Seller's opinion letters referenced in Sections 11.5 and
11.6 above; and 15.1.5 Such additional information and materials as Buyer shall
have reasonably requested.
15.2 Buyer's Documents. At the Closing, Buyer shall deliver or cause
to be delivered to Seller the following:
15.2.1 The Purchase Price in accordance with Section 3.3 hereof;
15.2.3 The opinion of Buyer's counsel, dated the Closing Date, to
the effect set forth in Section 12.4;
15.2.4 Governmental certificates showing that Buyer is duly
incorporated and in good standing in the State of Delaware and qualified and in
good standing in the State of Arkansas dated not more than forty-five (45) days
before the Closing Date;
15.2.5 An assignment and assumption agreement or agreements
reasonably
25
<PAGE>
satisfactory in form and substance to counsel to Seller effecting
the assumption of the Assumed Liabilities;
15.2.8 Such additional information and materials as Seller shall
have reasonably requested.
ARTICLE 16
INDEMNIFICATION
16.1 Seller's Indemnities. Seller hereby agrees to indemnify,
defend and hold Buyer harmless with respect to any and all demands, claims,
actions, suits, proceedings, assessments, judgments, costs, losses, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees) asserted against, resulting from, imposed upon or incurred by Buyer
directly or indirectly relating to or arising out of:
16.1.1 Any and all liabilities, obligations, or commitments of
Seller of any nature, whether absolute, accrued, contingent, or otherwise,
including those relating to all periods prior to the Closing, whether the claim
is asserted prior to or after the Closing, by reason of or resulting from
liabilities or obligations of or claims against Seller in connection with
Seller's ownership or operation of the Station prior to the Closing, except
liabilities, obligations, or commitments of Seller included in the Assumed
Liabilities;
16.1.2 The breach of any of the representations or warranties or
failure by Seller to perform any covenants, conditions or agreements of Seller
set forth in this Agreement;
16.1.3 Any failure to comply with any "bulk sales" laws applicable
to the transactions contemplated hereby;
16.1.4 The failure of Seller to pay, perform or discharge when due
any of Seller's obligations, liabilities or Contracts not assumed by Buyer
pursuant to this Agreement; 16.1.5 Any employee benefit plan maintained by
Seller.
16.2 Buyer's Indemnities. Buyer hereby agrees to indemnify, defend
and hold Seller harmless with respect to any and all demands, claims, actions,
suits, proceedings, assessments, judgments, costs, losses, damages,
liabilities and expenses (including, without limitation, reasonable attorneys'
fees) asserted against, resulting from, imposed upon or incurred by Seller
directly or indirectly relating to or arising out of:
26
<PAGE>
16.2.1 The use or operation of the Station Assets after the Closing
Date; 16.2.2 The breach of any of the representations, warranties, covenants,
conditions or agreements of Buyer set forth in this Agreement; and
16.2.3 The Assumed Liabilities.
16.3 Rights. Buyer and Seller agree that the rights of
indemnification provided in this Article 16 are exclusive of and in addition
to any and all other such rights of Buyer or Seller hereunder.
16.4 Survival of Representations and Warranties. Either party shall
have the right to bring an action with respect to the representations and
warranties contained herein for a period of eighteen (18) months following the
Closing Date, and upon the expiration of such period such right shall lapse
and be of no further force or effect.
16.5 Limitation on Indemnity. Notwithstanding anything to the
contrary contained in this Agreement, and subject to the proviso set forth
below, neither party shall have any liability or obligation to the other for
breach of any representation, warranty, covenant or agreement of the other in
this Agreement except to the extent that the aggregate of all claims for such
breaches exceeds Twenty-Five Thousand Dollars ($25,000) (the "Threshold
Amount"), in which event the party so liable shall then be liable for all
claims for any such breaches, including the sums constituting the Threshold
Amount; provided, however, that the foregoing Threshold Amount limitation
shall not apply to Seller's obligation for the Excess Trade Balance.
16.6 Procedures.
16.6.1 Promptly after the receipt by either party (the "Indemnified
Party") of notice of (A) any claim or (B) the commencement of any action or
proceeding which may entitle such party to indemnification under this Section,
such party shall give the other party (the "Indemnifying Party") written notice
of such claim or the commencement of such action or proceeding and shall permit
the Indemnifying Party to assume the defense of any such claim or any
litigation resulting from such claim. The failure to give the Indemnifying
Party timely notice under this Section 16.6.1 shall not preclude the
Indemnified Party from seeking indemnification from the Indemnifying Party
unless such failure has materially prejudiced the Indemnifying Party's ability
to defend the claim or litigation.
27
<PAGE>
16.6.2 If the Indemnifying Party assumes the defense of any such
claim or litigation resulting therefrom with counsel reasonably acceptable to
Indemnified Party, the obligations of the Indemnifying Party as to such claim
shall be limited to taking all steps necessary in the defense or settlement of
such claim or litigation resulting therefrom and to holding the Indemnified
Party harmless from and against any losses, damages and liabilities caused by
or arising out of any settlement approved by the Indemnifying Party or any
judgment in connection with such claim or litigation resulting therefrom;
provided, however, that the Indemnified Party may participate, at its expense,
in the defense of such claim or litigation provided that the Indemnifying Party
shall direct and control the defense of such claim or litigation. The
Indemnified Party shall cooperate and make available all books and records
reasonably necessary and useful in connection with the defense. The
Indemnifying Party shall not, in the defense of such claim or any litigation
resulting therefrom, consent to entry of any judgment, except with the written
consent of the Indemnified Party, or enter into any settlement, except with the
written consent of the Indemnified Party, which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnified Party of a release from all liability in respect of such claim or
litigation.
16.6.3 If the Indemnifying Party shall not assume the defense of any
such claim or litigation resulting therefrom, the Indemnified Party may, but
shall have no obligation to, defend against such claim or litigation in such
manner as it may deem appropriate, and the Indemnified Party may compromise or
settle such claim or litigation without the Indemnifying Party's consent. The
Indemnifying Party shall promptly pay any such settlement of such claim or
litigation and shall also promptly reimburse the Indemnified Party for the
amount of all expenses, legal or otherwise, incurred by the Indemnified Party
in connection with the defense against or settlement of such claim or
litigation. If no settlement of the claim or litigation is made, the
Indemnifying Party shall promptly reimburse the Indemnified Party for the
amount of any judgment rendered with respect to such claim or in such
litigation and of all expenses, legal or otherwise, incurred by the Indemnified
Party in the defense against such claim or litigation.
ARTICLE 17
TERMINATION RIGHTS
17.1 Termination. This Agreement may be terminated by either Buyer
or Seller, if the
28
<PAGE>
party seeking to terminate is not in material default or breach of this
Agreement, upon written notice to the other upon the occurrence of any of the
following:
(a) if the other party defaults in any material respect in the
observance or in the due and timely performance of any of its covenants or
agreements herein contained and such material default shall not be cured within
thirty (30) days of the date of notice of default served by the party claiming
such material default; or
(b) if the FCC denies the FCC Application, or if the FCC fails to
grant the FCC Consents within twelve (12) months following the filing of the
FCC Application, provided that the party seeking termination has diligently
prosecuted the FCC Application in good faith; or
(c) on the first anniversary of this Agreement, if there shall be in
effect any judgment, final decree or order that would prevent or make unlawful
the Closing of this Agreement; or
(d) by the Buyer only, if there is a cessation of broadcast
transmissions by the Station, for a period of three (3) full consecutive days
or for seven (7) or more days within any thirty (30) day period, or normal
broadcast transmissions are not resumed by the date immediately preceding the
Closing Date; or
(e) as provided in Sections 7.11 and 18.3 or any other section of
this Agreement which specifically provides for terminations.
17.2 Liability. The termination of this Agreement under Section
17.1 shall not relieve any party of any liability for breach of this Agreement
prior to the date of termination.
ARTICLE 18
OTHER PROVISIONS
18.1 Specific Performance. Seller recognizes that, in the event
Seller refuses to perform the provisions of this Agreement, monetary damages
alone will not be adequate. Buyer shall, therefore, be entitled in such event,
in addition to bringing suit at law or equity for money or other damages, to
obtain specific performance of the terms of this Agreement. In any action to
enforce the provisions of this Agreement, Seller shall waive the defense that
there is an adequate remedy at law or equity and agrees that Buyer shall have
the right to obtain specific performance of the terms of this Agreement
without being required to prove actual damages, post bond or furnish other
29
<PAGE>
security.
18.2 Liquidated Damages. If the Seller terminates this Agreement
pursuant to Section 17.1 above due to Buyer's breach of any material
representation, warranty, covenant or condition hereunder, and Seller is not
at that time in breach of any material representation, warranty, covenant or
condition hereunder, then Seller would suffer direct and substantial damages,
which damages cannot be determined within reasonable certainty. Therefore,
because of the expense and delay which would be incurred in such event by
Seller, Buyer shall pay to Seller the amount of Four Hundred Ten Thousand
Dollars ($410,000), which amount shall constitute liquidated damages. It is
understood and agreed that such liquidated damage amount represents Buyer's
and Seller's reasonable estimate of actual damages and does not constitute a
penalty. Recovery of liquidated damages shall be the sole and exclusive remedy
of Seller against Buyer for failing to consummate this Agreement on the
Closing Date and shall be applicable regardless of the actual amount of
damages sustained. In the event that either of the parties hereto bring suit
to enforce the provisions of this Section 18.2 or Section 18.1 above, the
prevailing party in any such action shall, in addition to any remedies set
forth in this Agreement, be entitled to recover reasonable attorney's fees
from the other party.
18.3 Risk of Loss. The risk of loss or damage to any of the Station
Assets prior to the Closing Date shall be upon Seller. Seller shall repair,
replace and restore any such damaged or lost Station Asset to its prior
condition as soon as possible and in no event later than the Closing Date.
Except as provided below, if Seller fails to restore or replace a Station
Asset with a value exceeding Fifty Thousand Dollars ($50,000), Buyer may elect
either to terminate this Agreement pursuant to Article 17 hereof or to
consummate the Closing on the Closing Date. If Seller fails to restore or
replace such Station Asset and Buyer does not elect to terminate this
Agreement, Seller shall assign to Buyer at Closing Seller's rights under any
insurance policy or pay over to Buyer all proceeds of insurance covering such
Station Asset's damage, destruction or loss. If the restoration and
replacement of any damaged or destroyed property has not been completed at the
time the Closing would otherwise be held, then unless Seller and Buyer
otherwise agree, the Closing Date shall be delayed and shall take place within
fifteen (15) days after Seller gives written notice to Buyer of completion of
the restoration or replacement of such Station Asset. If the delay in the
Closing Date
30
<PAGE>
under this Section 18.3 would cause the Closing to fall at anytime after the
period permitted by the FCC Consents, Seller and Buyer shall file an
appropriate request with the FCC for an extension of time within which to
complete the Closing.
18.4 Further Assurances. After the Closing, Seller shall from time
to time, at the request of and without further cost or expense to Buyer,
execute and deliver such other instruments of conveyance and transfer and take
such other actions as may reasonably requested in order to more effectively
consummate the transactions contemplated hereby to vest in Buyer good and
marketable title to the assets being transferred hereunder, and Buyer shall
from time to time, at the request of and without further cost or expense to
Seller, execute and deliver such other instruments and take such other actions
as may reasonably be requested in order to more effectively relieve Seller of
any obligations being assumed by Buyer hereunder.
18.5 Waiver. No delay or failure by any party hereto in exercising
any right, power or privilege under this Agreement, or under any other
instrument or document given in connection with or pursuant to this Agreement,
shall impair any such right, power or privilege or be construed as a waiver of
any default or any acquiescence therein. No single or partial exercise of any
such right, power or privilege shall preclude the further exercise of any
right, power of privilege, or the exercise of any other right, power or
privilege.
18.6 Severability. If any part or any provision of this Agreement
shall be invalid or unenforceable under applicable law, said part or
provisions shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining provisions
of this Agreement which shall be construed as if such invalid parts or
provisions had not been inserted, and such invalid or unenforceable provisions
shall become and be immediately amended and reformed to include only the
portions thereof as are enforceable by the court or such other body having
jurisdiction of this Agreement; and the parties agree that such portions as so
amended and reformed shall be valid and binding as though any wholly invalid
or unenforceable portion had not been included herein.
18.7 Benefit and Assignment. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. No party may voluntarily or involuntarily
assign its interest under this Agreement without the prior written consent
31
<PAGE>
of the other party; except that Buyer may assign its interests under this
Agreement pursuant to the provisions of Section 5.2 hereof.
18.8 Entire Agreement. This Agreement and the Exhibits hereto
embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings
relating to the matters provided for herein. No amendment, waiver of
compliance with any provision or condition hereof or consent pursuant to this
Agreement shall be effective unless evidenced by an instrument in writing
signed by the party against whom enforcement of any waiver, amendment, change,
extension or discharge is sought.
18.9 Headings. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
18.10 Governing Law. The construction and performance of this
Agreement shall be governed by the laws of the State of New York without giving
effect to the choice of law provisions thereof.
18.11 Notices. Any notice, demand or request required or permitted
to be given under the provisions of this Agreement shall be in writing and
shall be deemed to have been duly delivered and received on the date of
personal delivery or on the date of receipt, if mailed by registered or
certified mail, postage prepaid and return receipt requested, or on the date
of a stamped receipt, if sent by an overnight delivery service, and shall be
addressed to the following addresses, or to such other address as any party
may request, in the case of Seller, by notifying Buyer, and in the case of
Buyer, by notifying Seller:
To Seller: Multi-Market Radio, Inc.
150 East 58th Street, 19th Floor
New York, New York 10155
Attn: Legal Department
To Buyer: Triathlon Broadcasting of Little Rock,
Inc.
650 B Street, Suite 1920
San Diego, California
Attn: Norman Feuer
32
<PAGE>
18.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date and year first above written.
SELLER:
SOUTHERN STARR OF ARKANSAS, INC.
By: /s/ Michael G. Ferrel
-----------------------------
Michael G. Ferrel
President
BUYER:
TRIATHLON BROADCASTING OF LITTLE ROCK, INC.
By: /s/ Norman Feuer
------------------------------
Norman Feuer
President
33
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<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-END> SEP-30-1996
<CASH> 12,783,000
<SECURITIES> 0
<RECEIVABLES> 4,495,000
<ALLOWANCES> 325,000
<INVENTORY> 0
<CURRENT-ASSETS> 17,711,000
<PP&E> 5,716,000
<DEPRECIATION> 382,000
<TOTAL-ASSETS> 71,668,000
<CURRENT-LIABILITIES> 3,347,000
<BONDS> 0
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6,000
<COMMON> 48,000
<OTHER-SE> 65,630,000
<TOTAL-LIABILITY-AND-EQUITY> 71,668,000
<SALES> 11,160,000
<TOTAL-REVENUES> 9,950,000
<CGS> 0
<TOTAL-COSTS> 8,238,000
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<CHANGES> 0
<NET-INCOME> (2,511,000)
<EPS-PRIMARY> (0.52)
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</TABLE>
