<DOCUMENT>
<TYPE>EX-10.08
<SEQUENCE>34
<FILENAME>dex1008.txt
<DESCRIPTION>ASSET PURCHASE AGREEMENT
<TEXT>
<PAGE>
Exhibit 10.08
Asset Purchase Agreement
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made this 11/th/ day
of February, 2000, by and between NextMedia Group, LLC, a Delaware limited
liability company ("Buyer"); Pinnacle Broadcasting Company, Inc., a Delaware
corporation ("Pinnacle"); WSOY Decatur, Inc., a Delaware corporation; Pinnacle
Southeast, Inc., a Delaware corporation; Pinnacle Myrtle Corp., a Delaware
corporation; Atlantic Towers, Inc., a South Carolina corporation; El Paso and
Lubbock, Inc., a Delaware corporation; WFXC & WDUR, Inc., a Delaware
corporation; and Pinnacle S.C., Inc., a Delaware corporation (each of the
foregoing eight companies a "Seller" and, collectively, the "Sellers").
W I T N E S S E T H :
WHEREAS, Sellers own certain assets used in connection with the operation
of Radio Stations WDZ (AM), WDZQ (FM), WSOY (AM) and WSOY -FM, Decatur, IL; WCZQ
(FM), Monticello, IL; WANJ (FM), Belhaven, NC; WANG (AM) and WANG-FM, Havelock,
NC; WKOO (FM), Jacksonville, NC; WRNS (AM) and WRNS-FM, Kinston, NC; WDLX (AM)
and WERO (FM), Washington, NC; WRNN-FM, Murrells Inlet, SC; WYAV (FM), Myrtle
Beach, SC; WMYB (FM), Socastee, SC; WYAK (FM), Surfside Beach, SC; KLLL (FM)
and KONE (FM), Lubbock, TX; and KMMX (FM), Tahoka, TX (each a "Station" and
collectively the "Stations"); and
WHEREAS, Buyer desires to acquire from Sellers and Sellers desire to sell
to Buyer substantially all of the assets owned by Sellers, used in or useful to
the operation of the Stations except Excluded Assets (as hereinafter defined);
and
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WHEREAS, Buyer and Seller desire that Buyer supply programs to the Stations
from March 1, 2000, to the Closing Date (as hereinafter defined) through a Time
Brokerage Agreement (the "TBA"); and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
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1.1. Transfer of Assets. On the terms and subject to the conditions hereof
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and subject to Section 1.2, on the Closing Date, Sellers shall assign, transfer,
convey and deliver to Buyer and Buyer shall acquire and assume from Sellers, all
of the right, title and interest of Sellers in and to all of the following
assets, properties, interests and rights of Sellers (collectively the "Station
Assets") free and clear of all liens, claims, or encumbrances other than
Permitted Liens (as defined in Section 6.1.10):
1.1.1 All of each Seller's rights in and to the licenses, permits and
other authorizations issued to any Seller by any governmental authority,
including those issued by the Federal Communications Commission (the "FCC"),
used in connection with the operation of the Stations, along with renewals or
modifications of such items from the date hereof through the Closing Date,
including but not limited to those listed in Schedule 1.1.1 hereto (hereafter
referred to as the "Station Licenses");
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1.1.2 All equipment, office furniture and fixtures, office materials
and supplies, inventory, spare parts and all other tangible personal property of
every kind and description, and Sellers' rights therein, owned, leased or held
by any Seller and used in or useful to the operations of the Stations, including
but not limited to those items described or listed in Schedule 1.1.2 hereto,
together with any replacements thereof, improvements or additions thereto made
from the date hereof through 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 of Sellers (the "Tangible Personal Property");
1.1.3 All of each Seller's rights, in and under those contracts,
agreements, leases and legally binding contractual rights of any kind, written
or oral, relating to the operation of the Stations ("Contracts") that are listed
in Schedule 1.1.3 hereto and (i) those Contracts entered into by a Seller from
the date hereof through the Closing Date in the ordinary course of the Sellers'
business, subject to Section 1.2.4, and Section 8.1; (ii) all Contracts for the
sale of advertising time, subject to Section 8.1 hereto; and (iii) all Contracts
for consideration other than cash, such as merchandise, services or promotional
consideration ("Trade Agreements"), subject to Section 17.10 hereto;
1.1.4 All of each Seller's rights in and to all processes, patents,
trade secrets, proprietary information, call letters, trademarks, trade names,
service marks, copyrights, Internet domain names, including registrations and
applications for registration of any of them, computer software programs and
programming material of whatever form or nature, jingles, slogans, the Stations'
logos and all other logos or licenses to use the same and all other intangible
property rights
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of Sellers, which are used in connection with the operation of the Stations,
including but not limited to those listed in Schedule 1.1.4 hereto
(collectively, the "Intellectual Property") together with any associated good
will and any additions thereto between the date hereof and the Closing Date;
1.1.5 All of each Seller's rights in and to all the files, documents,
records, and books of account relating to the operation of the Stations or to
the Station Assets, including, without limitation, each Station's public files,
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, originals or copies with facsimile
signatures of all written Contracts to be assigned hereunder, logs, software
programs and books and records relating to employees, operation and technical
matters; but excluding records relating solely to any Excluded Asset (as
hereinafter defined);
1.1.6 All of each Seller's rights to the extent they are assignable
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;
1.1.7 All real property owned by any Seller and related to the
operation of any Station, together with all appurtenant easements thereunto and
all structures, fixtures and improvements located thereon, together with any
additions thereto from the date hereof through the Closing Date (the "Owned Real
Estate");
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1.1.8 All leasehold rights and interests of a Seller in real
property used in connection with the operations of any of the Stations (the
"Leased Real Estate," together with the Owned Real Estate, the "Real Estate").
The Real Estate is more fully described in Schedule 1.1.8;
1.1.9 All such other assets, properties, interests and rights
owned by any Seller that are used in connection with the business and operation
of the Stations or that are located as of the Closing Date on the Real Estate,
except Excluded Assets; and
1.1.10 All of any Seller's rights in and to all causes of action
for any past infringement of any of the Intellectual Property.
1.2. Excluded Assets. Notwithstanding anything to the contrary contained
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herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets or any right, title or interest therein (the
"Excluded Assets"):
1.2.1 All cash, marketable securities, and cash equivalents of the
Sellers on hand and/or in banks;
1.2.2 All accounts receivable or notes receivable of Sellers as of
the TBA Effective Date;
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1.2.3 All tangible and intangible personal property of any Seller
disposed of or consumed in the ordinary course of business of Sellers between
the date hereof and the Closing Date, as permitted hereunder;
1.2.4 All Contracts that have terminated or expired on or prior to
the Closing Date in the ordinary course of business of Sellers;
1.2.5 Each Seller's memoranda, correspondence, notes, corporate
seals, minute books, charter, limited liability company, and/or partnership
documents, corporate stock record books and such other books and records as
pertain to the organization, existence, share capitalization or partnership
interests of that Seller, and duplicate copies of such financial records as are
necessary to enable each Seller to file its tax returns and reports as well as
any other records or materials relating to any Seller generally;
1.2.6 Contracts of insurance and all insurance proceeds or claims
made by any Seller arising or related to the Station Assets prior to Closing
(as hereinafter defined);
1.2.7 The Employee Benefit Plans, as set forth in Sellers'
Disclosure Letter, and the assets thereof;
1.2.8 Any right to use the name "Pinnacle," "Pinnacle
Broadcasting" or any variation thereof or the corporate name or any variation
thereof of any of the Sellers;
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1.2.9 All material contracts entered into before this Agreement
and not listed in Schedule 1.1.3;
1.2.10 Those specific assets identified in Schedule 1.2.10;
1.2.11 Except as described in Section 1.1.10, all of any Seller's
rights in and to all causes of action; and
1.2.12 All tax refunds relating to the period prior to the Closing.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1. Assumption of Obligations. Subject to the provisions of this Section
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2.1, Section 2.2 and the TBA, on the Closing Date, Buyer shall assume (i) the
obligations of each Seller arising or to be performed after that date under the
Contracts referred to in Section 1.1.3 hereto in effect on that date, (ii) the
liabilities set forth on Schedule 2.1, (iii) all liabilities and obligations
that arise from the operation by Buyer of the Station Assets after the TBA
Effective Date, and (iv) all liabilities and obligations of Seller under a Real
Estate Lease, to the extent such obligations and liabilities relate to the
period after the Closing Date. All of the foregoing liabilities and
obligations shall be referred to herein collectively as the "Assumed
Liabilities."
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2.2. Retained Liabilities. Subject to the TBA, notwithstanding anything
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contained in this Agreement to the contrary, Buyer does not assume or agree to
pay, satisfy, discharge or perform, and will not be deemed by virtue of the
execution and delivery of this Agreement or any document delivered at the
execution of this Agreement, or as a result of the consummation of the
transactions contemplated by this Agreement, to have assumed, or to have agreed
to pay, satisfy, discharge or perform, any liability or obligation of any Seller
other than the Assumed Liabilities, including any of the following liabilities
or obligations of the Sellers (the "Retained Liabilities"), unless such
liabilities or obligations result from the acts or omissions of Buyer, its
employees, agents, assignees, Affiliates, subsidiaries, or those acting on
behalf of Buyer:
2.2.1 All obligations or liabilities of any Seller or any
predecessor or Affiliate (as hereinafter defined) of a Seller which relate to
any of the Excluded Assets.
2.2.2 Other than taxes expressly allocated pursuant to other
provisions of this Agreement, tax liabilities of any and all kinds (federal,
state, local, and foreign) of Sellers including, without limitation, any
liabilities for taxes on or measured by income, liabilities for withheld federal
and state income taxes and employee F.I.C.A. (Federal Insurance Contribution
Act) or employer F.I.C.A., and liabilities for income taxes arising as a result
of the transfer of the Station Assets or otherwise by virtue of the consummation
of the transactions contemplated hereby;
2.2.3 All liabilities or obligations of any Seller owed to any of
its Affiliates;
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2.2.4 All liabilities or obligations arising out of any breach
occurring prior to the Closing by any Seller (or a predecessor or Affiliate of
any Seller) of any of the terms or conditions of a Real Estate Lease or contract
to which Seller is a party (or successor in interest to a party).
2.2.5 All liabilities and obligations of any Seller or a
predecessor or Affiliate of any Seller resulting from, caused by or arising out
of, any violation of law exclusive of Permitted Liens;
2.2.6 Any claims, liabilities and obligations of any Seller as an
employer, including, without limitation, liabilities for wages, supplemental
unemployment benefits, vacation benefits, severance benefits, retirement
benefits, COBRA benefits, FMLA benefits, WARN obligations and liabilities, or
any other employee benefits, withholding tax liabilities, workers' compensation,
or unemployment compensation benefits or premiums, hospitalization or medical
claims, occupational disease or disability claims, or other claims attributable
in whole or in part to employment or termination by that Seller or arising out
of any labor matter involving that Seller as an employer, and any claims,
liabilities and obligations arising from or relating to the Employee Benefit
Plans;
2.2.7 Any claims, liabilities, losses, damages, or expenses
relating to any litigation, proceeding, or investigation of any nature arising
out of the operations of any of the Stations on or prior to the Closing Date
including, without limitation, any claims against or any liabilities for injury
to or death of persons or damage to or destruction of property, any workers'
compensation claims, and any warranty claims unless such claim, liability, loss,
damage or expense is caused by or results
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from an act or material omission of Buyer, its employees, agents, Affiliates,
subsidiaries, assigns or those acting on behalf of Buyer;
2.2.8 Except as provided in Section 3.3, any accounts payable,
other indebtedness, obligations or accrued liabilities of any Seller, including
any obligations of a Seller under leases of capital equipment (a "Capital
Lease"); and
2.2.9 Any fees and expenses incurred by Sellers in connection with
negotiating, preparing, closing, and carrying out this Agreement and the
transactions contemplated by this Agreement, including, without limitation, the
fees and expenses of Sellers' attorneys, accountants, consultants and brokers,
except as otherwise provided in Section 13.2.
ARTICLE 3
CONSIDERATION
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3.1. Purchase Price and Delivery of Consideration. As consideration for
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the sale and conveyance of the Stations Assets, and in addition to the
assumption of certain obligations of Sellers pursuant to Section 2.1 above,
Buyer shall, subject to Articles 11 and 12 hereof, at the Closing pay and
deliver to Pinnacle: Seventy-Five Million Dollars ($75,000,000.00) (the
"Purchase Price"); by certified check or wire transfer of immediately available
United States funds. The Purchase Price shall be paid in full at the Closing
subject only to the Five Hundred Thousand Dollars ($500,000.00) Holdback Amount
as provided in Section 8.9, below.
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3.2. Allocation of Consideration. Within thirty (30) days after the
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Closing Date, Sellers and Buyer shall negotiate in good faith an allocation of
the total consideration among the Station Assets (the "Allocation"). If the
Allocation is not agreed upon within thirty (30) days after the Closing Date,
Buyer will order an appraisal of the Station Assets from Broadcast Investments
Analysts ("BIA") and BIA will determine the Allocation. The appraisal, if
required, shall be provided to Sellers within forty-five (45) days after it is
ordered. Buyer and Sellers agree to prepare and file all income tax returns
(including, if applicable, Form 8594) in a manner consistent with the Allocation
and will not in connection with the filing of such returns make any allocation
that is contrary to the Allocation. Buyer and Sellers agree to consult with
each other with respect to all issues related to the Allocation in connection
with any tax audits, controversy or litigation. The fees for BIA shall be borne
by Buyer.
3.3. Allocations and Prorations.
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3.3.1 Subject to the TBA appended hereto as Exhibit 10.9, all
operating income and expenses of the Stations and Station Assets attributable
thereto through 11:59 a.m. on the Closing Date shall be for the account of
Sellers and thereafter shall be for the account of Buyer.
3.3.2 The Allocation and proration set forth in Subsection 3.3.1
above shall be made by Buyer and a statement thereof given to Sellers within
thirty (30) days after the Closing Date. Sellers shall give written notice of
any objection thereto within twenty (20) business days after delivery of such
statement, detailing the reason for such objection and stating the amount of the
proposed final Allocation and proration. If a timely objection is made and the
parties cannot reach
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agreement within thirty (30) days after receipt of the objection as to the
amount of the final Allocation and proration, the matter shall be referred to
Arthur Andersen, L.L.P. (the "Independent Auditor") to resolve the matter, whose
decision will be final and binding on the parties, and whose fees and expenses
shall be borne by Buyer and Sellers in accordance with the following: each party
shall pay an amount equal to the sum of all fees and expenses of the Independent
Auditor on a proportional basis taking into account the amount of the net
Allocation and proration proposed by each of Buyer and Sellers and the amount of
the final Allocation and proration determined by the Independent Auditor (for
example, if Buyer proposed a payment of $10 to Sellers, Sellers proposed a
payment of $100, and the Independent Auditor proposed a payment of $30, Buyer
would pay 20/90ths of the Independent Auditor's fees and Sellers would pay
70/90ths of those fees based on the $90 in dispute between the parties). Within
five (5) business days following a final determination hereunder, the party
obligated to make payment will make the payments determined to be due and owing
in accordance with this Section 3.3.
ARTICLE 4
CLOSING
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4.1. Closing. The consummation of the transactions contemplated herein
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(the "Closing") shall occur, except as otherwise mutually agreed upon by Buyer
and Sellers, (i) within ten (10) business days after the FCC Consent (as
hereinafter defined) to the assignment of the Station Licenses have become Final
Orders (as hereinafter defined), or (ii) at such later date that all other terms
and conditions as set forth in Articles 11 and 12 have been satisfied, or (iii)
such other date following FCC Consent to the assignment as may be mutually
agreed to by the parties ("Closing
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Date"). For purposes of the Agreement, "Final Order" means action by the FCC
granting an application contemplated by this Agreement which is not reversed,
stayed, enjoined, set aside, annulled or suspended, and with respect to which
action no timely request for stay, petition for rehearing, or reconsideration,
application for review or appeal is pending, and as to which the time for filing
any such request, petition or appeal or reconsideration by the FCC on its own
motion has expired. The Closing shall be held in the offices of Brooks, Pierce,
McLendon, Humphrey & Leonard, L.L.P., First Union Capitol Center, Suite 1600,
Raleigh, North Carolina 27601, or at such place as the parties hereto may agree.
ARTICLE 5
GOVERNMENTAL CONSENTS
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5.1. FCC Consent. It is specifically understood and agreed by Buyer and
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Sellers that the Closing and the assignments of the Station Licenses and the
transfer of the Station Assets are expressly conditioned on and are subject to
the prior consent and approval of the FCC ("FCC Consent").
5.2. FCC Applications. Within twenty (20) business days after the
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execution of this Agreement, Buyer and Sellers shall file applications with the
FCC for the FCC Consent ("FCC Applications"). Buyer and Sellers shall prosecute
the FCC Applications with all reasonable diligence and otherwise cooperate with
each other and the FCC and use their best efforts to obtain the FCC Consent as
expeditiously as practicable.
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ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLERS
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6.1. Representations and Warranties of Sellers. Each Seller represents
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and warrants to the Buyer the following:
6.1.1 Organization, Good Standing, Etc. (i) Each Seller is a
--------------------------------
corporation duly organized and validly existing under the laws of Delaware
except for Atlantic Towers, Inc. which is a corporation duly organized and
validly existing under the laws of South Carolina, and each Seller has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted and is duly qualified to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary;
(ii) Each Seller has all requisite power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by each Seller and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of Sellers, their officers, directors and shareholders. This
Agreement has been duly executed and delivered by Sellers and constitutes the
legal, valid and binding obligation of each Seller, enforceable against it in
accordance with its terms;
6.1.2 Authority. Assuming the consents contemplated by Sections
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6.1.2 and 6.1.14 are obtained, neither the execution and delivery of this
Agreement nor the consummation of
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the transactions contemplated hereby will (i) violate, conflict with or result
in any breach of any provision of the organizational documents of any Seller,
(ii) violate, conflict with or result in a violation or breach of, or constitute
a default (with or without due notice or lapse of time or both) under, or permit
the termination of, or result in the acceleration of, or entitle any party to
accelerate (whether as a result of the sale of the Station Assets or otherwise)
any material obligation except those matters disclosed in that letter to Buyer
from Sellers dated February __, 2000 (the "Sellers" Disclosure Letter"), or
result in the loss of any material benefit, or give rise to the creation of any
material lien, charge, security interest or encumbrance upon any of the
properties or assets of any Sellers or any of its subsidiaries under any of the
terms, conditions or provisions of any loan or credit agreement, note, bond,
mortgage, indenture or deed of trust, or any material license, lease, agreement
or other material instrument or obligation to which any of them is a party or by
which they or any of their properties or assets may be bound or affected, or
(iii) violate any order, writ, judgment, injunction, decree, statute, rule or
regulation of any court, administrative agency or commission or other
governmental authority or instrumentality (a "Governmental Entity") applicable
to any Seller or any of its properties or assets. To Sellers' knowledge, no
consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Entity is required by or with respect to Sellers
in connection with the execution and delivery of this Agreement by Sellers or
the consummation by Sellers of the transactions contemplated hereby, except for
consents of the FCC to the assignments of the Station Licenses;
6.1.3 Financial Statements. Copies of the most recent unaudited
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internally prepared financial statements including income statements and balance
sheets have been provided to Buyer
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in Sellers' Disclosure Letter (such financial statements collectively being
referred to as the "Sellers' Financial Statements"). The Sellers' Financial
Statements were prepared on a consistent basis throughout the periods covered
thereby and present fairly, in all material respects, the consolidated financial
position and results of operations of the Stations as of such dates and for the
periods then ended (subject, in the case of the unaudited Sellers' Financial
Statements, to the absence of notes and to normal, recurring adjustments that
would not be material in the aggregate);
6.1.4 Absence of Undisclosed Liabilities. To Sellers' knowledge,
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there are no material liabilities of any kind whatsoever with respect to any
Station (whether absolute, accrued, contingent or otherwise, and whether due or
to become due), other than liabilities and obligations (i) provided for or
reserved against in the Sellers' Financial Statements, (ii) arising in the
ordinary course of business after the date of the latest balance sheet
pertaining to that Station and consistent with past experience, or (iii)
disclosed in Sellers' Disclosure Letter;
6.1.5 Compliance with Applicable Laws; FCC Matters. (i) To
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Sellers' knowledge, except as permitted or contemplated hereby or as disclosed
in Sellers' Disclosure Letter, the operations of the Stations have been and now
are being conducted in substantial compliance with each law, ordinance,
regulation, judgment, decree, injunction, rule or order of the FCC or any other
Governmental Entity binding on any Seller, the Stations or their respective
properties or assets. No investigation or review by any Governmental Entity with
respect to any Seller or any Station is pending or, to the Sellers' knowledge,
is threatened. Without limiting the generality of the foregoing and with respect
to the Stations, the Stations, to Sellers' knowledge and except as disclosed in
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Sellers' Disclosure Letter, comply in all material respects with the
Communications Act of 1934, as amended (the "Communications Act"), all rules,
regulations and written policies of the FCC thereunder, all obligations with
respect to equal opportunity under applicable law, and all rules and regulations
of the FCC and the Federal Aviation Administration applicable to the towers used
by the Stations (including all rules regulating hazards to air navigation,
registration of radio towers, and exposure of humans to non-ionizing radio
frequency radiation). In addition, Sellers have duly and timely filed, or
caused to be filed, with the appropriate Governmental Entities all applications,
reports, statements, fees, documents, registrations, filings or submissions with
respect to the operations of the Stations and the ownership thereof, including,
without limitation, applications for renewal of authority required by applicable
law to be filed. To Sellers' knowledge, all such filings complied in all
material respects with applicable laws when made, and no material deficiencies
have been asserted with respect to any such filings. The public inspection
files of the Stations required by 47 C.F.R. (S) 73.3526 are substantially
complete. Except as disclosed in Sellers' Disclosure Letter, Sellers have no
knowledge of any fact or circumstance relating to any Seller or Stations arising
from noncompliance with the Communications Act, or the rules, regulations or
written policies of the FCC in effect on the date of this Agreement that could
reasonably be expected to (a) disqualify Sellers from assigning the Station
Licenses to the Buyer or (b) prevent or delay the consummation by them of the
transactions contemplated by this Agreement;
(ii) Schedule 1.1.1 lists (a) all licenses, permits and other
authorizations (including all STL licenses and construction permits) issued by
the FCC relating to the Stations as of the date of this Agreement and (b) all
licenses, permits, or authorizations issued by any other
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Governmental Entities which are material to the operations of the Stations as of
the date of this Agreement. Such licenses, permits and authorizations, and all
applications for modification, extension or renewal thereof or for new licenses,
permits, permissions or authorizations that would be material to the operations
of the Stations, are collectively referred to herein as the Station Licenses (as
further defined in Section 1.1.1), each of which is in full force and effect.
The Stations, to Sellers' knowledge, have been operated in all material respects
in accordance with the terms of the Station Licenses, unless authority to
operate has otherwise been issued by the FCC (e.g., upon grant of an STA by the
FCC). Except for proceedings affecting the radio broadcast industry generally,
there are no proceedings pending or, to any of Seller's knowledge, threatened
with respect to ownership or operation of any Station which reasonably may be
expected to result in the revocation, material adverse modification, non-renewal
or suspension of any of the Station Licenses, the denial of any pending
applications for Station Licenses, the issuance of any cease and desist order,
or the imposition of any administrative actions by the FCC or any other
Governmental Entity with respect to the Station Licenses, or which reasonably
may be expected to adversely affect any Station's ability to operate as
currently operated or the Buyer's ability to obtain assignment of the Station
Licenses. To Sellers' knowledge, no other broadcast station or radio
communications facility is causing interference to the Stations' transmissions
beyond that which is allowed by FCC rules and regulations;
6.1.6 Litigation. Except as stated in Sellers' Disclosure Letter,
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(i) there is no action, suit, inquiry, judicial or administrative proceeding, or
arbitration pending or, to the knowledge of Sellers, threatened against any
Seller or any Station or any of their respective
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properties or assets by or before any arbitrator or Governmental Entity nor are
there any investigations relating to Sellers or any of the Stations or any of
their respective properties or assets pending or, to Sellers' knowledge,
threatened by or before any arbitrator or Governmental Entity; (ii) there is no
judgment, decree, injunction, or order of any Governmental Entity or arbitrator
outstanding against any Seller or any Stations or any of their respective
properties or assets and; (iii) there is no action, suit, inquiry, judicial or
administrative proceeding pending or, to Sellers' knowledge, threatened against
any Seller or any of the Stations by a third party relating to the Sellers or
the Station Assets or any of the transactions contemplated by this Agreement;
6.1.7 Insurance. A list identifying all fire, liability and
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other policies of insurance (excluding a key man life insurance policy) and all
fidelity bonds held by or applicable to the Stations setting forth in respect of
each such policy the policy name, policy number, carrier, term, type of coverage
and annual premium has been provided to Buyer in Sellers' Disclosure Letter. No
event has occurred, including, without limitation, the failure to give any
notice or information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of the insured parties under any
such insurance policies. Sellers shall cause comparable policies of insurance
to remain in effect for acts, omissions and events occurring on or prior to the
Closing Date;
6.1.8 Real Estate. (i) Schedule 1.1.8 accurately lists and
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describes all of the Real Estate held or used by Sellers in the operation of the
Stations. Sellers currently use the Real Estate
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in a manner that is consistent with the current operation of the Stations.
Sellers know of no restriction that would prohibit the continued use of the Real
Estate for the operation of the Stations, except as otherwise disclosed on the
schedules attached hereto or in Sellers' Disclosure Letter. At Closing, Sellers
shall convey each portion of the Owned Real Estate to Buyer in accordance with
the terms hereof, pursuant to a deed, with respect to each such portion of Owned
Real Estate, in recordable and substantially similar form to the deed pursuant
to which Seller took title to such portion of Owned Real Estate. Sellers have
insurable fee simple title to the Owned Real Estate and have obtained title
insurance on the Owned Real Estate (including the improvements thereon), free
and clear of all liens, mortgages, pledges, covenants, easements, restrictions,
encroachments, charges and other claims and encumbrances of any nature
whatsoever, and mineral, timber, oil or gas rights, the exercise of which would
materially adversely affect the current operations of the Stations or to
Sellers' knowledge, the intended continued operation of the Stations in a
similar fashion, except for Permitted Liens (as hereinafter defined) or as
disclosed in the Sellers' Disclosure Letter;
(ii) Each lease, including any amendments thereto and assignments
thereof, under which any Seller uses or occupies any Real Estate or under which
any Seller grants any third party a right to use or occupy any portion of the
Real Estate (individually, "Real Estate Lease," and collectively, "Real Estate
Leases") is to Sellers' knowledge, in full force and effect and is binding and
enforceable on Sellers in accordance with its terms. To Sellers' knowledge,
Sellers are not in material default under, and have received no notice of a
default or claim of default against Sellers under any such Real Estate Lease,
and Sellers have no knowledge of any event or circumstance that, with the
passage of time or the giving of notice or both, would result in (x) a material
default by a
20
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Seller or (y) a default by any other party to the Real Estate
Leases. To Sellers' knowledge, no notice of termination has been received by
Sellers with respect to any Real Estate Lease, except as otherwise disclosed on
the schedules attached hereto or the Sellers' Disclosure Letter. With respect
to those Real Estate Leases pursuant to which Seller occupies the premises as
tenant thereunder, Sellers shall use commercially reasonable efforts to obtain
the consent of the landlords under each material Real Estate Lease,
respectively, to the assignment of such Real Estate Lease to Buyer substantially
on the terms and conditions as Sellers now enjoy under the Real Estate Leases.
(iii) To Sellers' knowledge and unless otherwise noted in the
schedules attached hereto or the Sellers' Disclosure Letter, no persons or
entities other than the Sellers have any interest in the Owned Real Estate,
apart from Permitted Liens;
(iv) The buildings (or portions thereof), improvements and fixtures
located on or attached to the Real Estate are reasonably suitable for their
current use by the Stations.
(v) No condemnation of any of the Real Estate has occurred. To
Sellers' knowledge, there are no pending or threatened condemnation or eminent
domain proceedings that may materially adversely affect the use of the Real
Estate for the operation of the Stations.
(vi) To Sellers' knowledge, Sellers presently have adequate routes of
ingress and egress to, from and over all of the Real Estate necessary to operate
the Stations.
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(vii) In Sellers' opinion, the improvements on the Real Estate have
adequate utility services for the operations of the Stations.
(viii) To Sellers' knowledge, no improvement of Seller on any of the
Owned Real Estate encroaches upon the adjacent real property of any other person
or entity so as to materially interfere with the current use of the Real Estate
by Sellers.
6.1.9 Tangible Personal Property. Schedule 1.1.2 hereto contains
--------------------------
a list of all material Tangible Personal Property owned or held by Sellers and
used in the conduct of the business and operations of the Stations. Except as
stated in Sellers' Disclosure Letter, Sellers own and have good and valid title
to all Tangible Personal Property and none of such property is subject to any
Liens, other than Permitted Liens. The Tangible Personal Property and fixtures
owned or used or to be acquired by Sellers, and necessary for the operation of
the Stations, are, to Sellers' knowledge, in operating condition and are
sufficient to permit the current conduct of the business of the Stations. At
Closing, Sellers shall own all of the Tangible Personal Property listed in
Schedule 1.1.2 and this shall include all of the Tangible Personal Property and
fixtures necessary to conduct the business of the Stations as presently
conducted subject to Permitted Liens identified in Schedule 2.1 and except as
listed on Schedule 1.2.10 (Excluded Assets). The Station Assets to be
transferred hereunder constitute to Sellers' knowledge all of the assets, rights
and properties that are required for the operation of the Stations.
22
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6.1.10 Liens and Encumbrances. Except as set forth in Sellers'
----------------------
Disclosure Letter, all of Sellers' properties and assets relating to the
Stations, including leases, are free and clear of all liens, pledges, claims,
security interests, mortgages, tenancies and other possessory interests,
conditional sale or other title retention agreements (including Capital Leases),
assessments, easements, rights-of-way, covenants, restrictions, rights of first
refusal, defects in title, encroachments and other burdens, options or
encumbrances of any kind (collectively, "Liens") except (i) statutory Liens
securing payments not yet delinquent or the validity of which are being
contested in good faith by appropriate actions, (ii) Liens for taxes,
assessments or governmental charges not yet delinquent or the validity of which
is being contested in good faith by appropriate action, (iii) Liens securing
indebtedness, all of which Liens will be discharged by Sellers at the Closing
upon repayment of all amounts due and owing, unless otherwise agreed by Buyer,
(iv) Liens which individually do not materially detract from the value of, or
materially impair the present and continued use of, the properties or assets
affected thereby, for the operation of the Stations, (v) the Real Estate Leases
and Liens on Leased Real Estate and leases (other than Capital Leases) arising
from the provisions of such leases, (vi) zoning ordinances, sanitary and
building codes and all statutes, regulations or other administrative enactments
of any governmental authority having jurisdiction over the Real Estate or any
part thereof; (vii) all matters contained in or disclosed upon title policies
and/or title commitments, property plans, maps or surveys of any portion of the
Real Estate, whether prepared for Sellers or for any third party, and all
matters disclosed on maps or surveys of the Real Estate or any part thereof
received by Sellers, in either case, as of the date upon which Sellers took
title to, or was granted a leasehold interest in, the Real Estate affected
thereby, provided, however, that any and all public improvements or public works
-----------------
of any kind already
23
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performed or to be performed which affect the Real Estate or any part thereof
shall constitute a Permitted Lien hereunder without regard to the date
performed, implemented or enacted, (viii) all notations, notices of violations
of applicable laws, ordinances, rules and regulations and other matters or
restrictions of record or filed against the Real Estate or any portion thereof
as of the date upon which Sellers took title to, or was granted a leasehold
interest in, the Real Estate affected thereby (all of the foregoing matters
referred to in clauses (i) through (viii), collectively with the matters set
forth on Schedule 1.1.8 and in the Sellers' Disclosure Letter, "Permitted
Liens").
6.1.11 Environmental Matters. Sellers make no environmental
---------------------
representations, covenants or warranties;
6.1.12 Taxes. (i) All Tax Returns (as defined in subsection (vii)
-----
below) that are required to be filed on or before the execution of this
Agreement by Sellers have been duly filed on a timely basis under the statutes,
rules and regulations of each applicable jurisdiction. All such Tax Returns are
complete and accurate. Except as stated in Sellers' Disclosure Letter, all Taxes
(as defined in subsection (vii) below), whether or not reflected on the Tax
Returns, which are due with respect to the Sellers and any of their Affiliates
have been timely paid by the Sellers and/or any such Affiliates, whether or not
such Taxes are disputed. For the purposes of this Section 6.1.12 only,
Affiliates shall mean any entity that files a consolidated tax return with any
Seller;
(ii) No claim for assessment or collection of Taxes has to Sellers'
knowledge been asserted against any Seller or any Affiliates. None of Sellers
nor any of Sellers' Affiliates is, to
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Sellers' knowledge, a party to any pending audit, action, proceeding or
investigation by any Governmental Entity for the assessment or collection of
Taxes, nor does any Seller or any Affiliate have knowledge of any threatened
audit, action, proceeding or investigation;
(iii) None of Sellers nor any of Sellers' Affiliates has waived or
extended any statutes of limitation for the assessment or collection of Taxes.
To Sellers' knowledge, no claim has ever been made by a Governmental Entity in a
jurisdiction where any Seller or any Affiliate does not currently file Tax
Returns that any of Sellers or their Affiliates is or may be subject to taxation
by that jurisdiction. Nor is any Seller or any of its Affiliates aware that any
such assertion of tax jurisdiction is pending or threatened. To Sellers'
knowledge, no Liens, other than Permitted Liens (whether filed or arising by
operation of law) have been imposed upon or asserted against any of the assets
of the Stations as a result of or in connection with any failure, or alleged
failure to pay any Tax;
(iv) Each Seller has, to its knowledge, withheld and paid all Taxes
required to be withheld in connection with any amounts paid or owing to any
employee, creditor, independent contractor or other third party;
(v) No Seller is a foreign person within the meaning of Section 1445
of the Internal Revenue Code (the "Code");
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(vi) No payment described in this Agreement is subject to Section
280G of the Code;
(vii) For purposes of this Agreement, the terms "Tax" and "Taxes"
shall mean all federal, state, local, or foreign income, payroll, Medicare,
withholding, unemployment insurance, social security, sales, use, service,
service use, leasing, leasing use, excise, franchise, gross receipts, value
added, alternative or add-on minimum, estimated, occupation, real and personal
property, stamp, duty, transfer, workers' compensation, severance, windfall
profits, taxes under Section 59A of the Code, other tax, charge, fee, levy or
assessment of the same or of a similar nature, including any interest, penalty,
or addition thereto, whether disputed or not. The term "Tax Return" means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes or any amendment thereto, and including any schedule
or attachment thereto;
6.1.13 Personnel. A complete and correct list as of February 1, 2000
---------
of the names, positions, and location of all employees of the Stations has been
provided to Buyer in Sellers' Disclosure Letter, which sets forth the current
salaries of all such employees and the other compensation arrangements with all
General Managers, Station Managers, General Sales Managers, Local Sales
Managers, National Sales Managers, Program Directors, Business Managers and
Traffic Managers (collectively, "Station Management") and indicates which of
those employees is a party to an employment contract that is not terminable upon
notice of 60 days or less without additional cost to the employer;
26
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6.1.14 Contracts The Contracts are the only contractual agreements
---------
necessary to carry out the business and operations of the Stations as currently
conducted. Each Contract with respect to the Stations is a valid and binding
obligation of Seller, and to Seller's knowledge is in full force and effect.
Seller has performed in all material respects the obligations required to be
performed by it thereunder and is not, to Seller's knowledge, in material breach
or default thereunder. Schedule 1.1.3 identifies, as to each Contract with
respect to the Stations listed thereon, whether the consent of the other party
thereto is required in order for such Contract to continue in full force and
effect upon the consummation of the transactions contemplated hereby;
6.1.15 ERISA Compliance. Except as stated in Sellers' Disclosure
----------------
Letter, no Seller nor any other trades or businesses under common control within
the meaning of Section 4001(b)(1) of ERISA (collectively, the "ERISA Group")
has contributed or been obligated to contribute to any "multi employer plan" as
such term is defined in Section 3(37) or Section 4001 (a)(3) of ERISA. A written
list of all "employee benefit plans" within the meaning of Section 3(3) of ERISA
and bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
insurance or other plan or arrangement or understanding providing benefits to
any present or former employee or contractor of the Stations maintained by
Sellers, or as to which any Seller (with respect to such individuals) has any
liability or obligation (collectively, "Employee Benefit Plans") has been
provided to Buyer in Sellers' Disclosure Letter;
27
<PAGE>
6.1.16 Labor Sellers have not 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 Sellers' employees. Except as stated
in Sellers' Disclosure Letter, Sellers, with respect to the Stations, (i) are
and to Sellers' knowledge have been in substantial compliance with all
applicable laws regarding employment and employment practices, terms and
conditions of employment, wages and hours, and plant closing, occupational
safety and health and workers' compensation and are not engaged, nor has any of
them engaged, in any unfair labor practices; (ii) have no, and have not had any,
unfair labor practice charges or complaints pending or to Sellers' knowledge
threatened against any of them before the National Labor Relations Board; and
(iii) do not presently have any, charges pending or to Sellers' knowledge
threatened against any of them before the Equal Employment Opportunity
Commission or any state or local agency responsible for the prevention of
unlawful employment practices. There is no labor strike, slowdown, work stoppage
or lockout actually pending or to Sellers' knowledge threatened against or
affecting any of the Stations. No union organizational campaign or
representation petition is currently pending to Sellers' knowledge with respect
to any of the employees working for any of the Stations;
6.1.17 Patents, Trademarks, Etc. Schedule 1.1.4 sets forth all call
-------------------------
letters, patents, patent applications, trademarks, trade names, Internet domain
names, service marks, trade secrets, applied for, issued, owned or used
copyrights and other proprietary Intellectual Property used in the operation of
the Stations (whether owned, leased or licensed). No Seller has received any
notice of any claimed conflict, violation or infringement of such Intellectual
Property rights. To Sellers' knowledge, none of such material Intellectual
Property rights is being infringed by any third party;
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<PAGE>
6.1.18 Absence of Certain Changes or Events. Except as contemplated
------------------------------------
or expressly permitted by this Agreement, since the date of the last relevant
balance sheet of Seller or otherwise disclosed in Sellers' Disclosure Letter,
there has not been (i) any material damage, destruction or loss of any kind with
respect to any of Sellers' Stations not covered by valid and collectible
insurance; (ii) with respect to any Station the execution of any agreement with
any Station management or broadcast personnel (whether an employee or
independent contractor) providing for his/her employment, or any increase in
compensation or severance or termination of benefits payable or to become
payable by Sellers, to any officer, Station management, or broadcast personnel
(whether an employee or independent contractor), or any increase in benefits
under any collective bargaining agreement, other than, in each case, in the
ordinary course of business and consistent with prior practice; or (iii) any
change by any Seller in its financial or tax accounting principles or methods;
6.1.19 Commission or Finder's Fees. Neither Sellers nor any entity
---------------------------
acting on behalf of Sellers has hired, retained or dealt with any broker,
finder, consultant or intermediary other than Star Media Group, Inc. (the
"Broker"), nor have Sellers 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 other than to the Broker whose fees shall be paid by Sellers.
Sellers shall indemnify and hold Buyer harmless from any and all damages,
expenses and liabilities arising from any claim, demand or charge made against
Buyer for any commission or other form of compensation or payment, based upon or
alleging negotiations or communications with Sellers or any person or entity
acting on
29
<PAGE>
Seller's behalf in connection with this transaction. The provisions of this
Section 6.1.19 shall survive the Closing and any termination or assignment of
this Agreement;
6.1.20 Full Disclosure. No representation or warranty by any Seller
---------------
contained in this Agreement (including the Schedules hereto) or in any
certificate furnished pursuant to this Agreement contains or will contain any
untrue statement of a material fact, or omits or will omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading; and
6.1.21 Sellers' Financial Condition. Except as stated in Sellers'
----------------------------
Disclosure Letter, no insolvency proceedings of any character, including,
without limitation, bankruptcy, receivership, reorganization, composition or
arrangement with creditors, voluntary or involuntary, affecting any Seller or
any of its respective assets or properties are pending, or to Sellers' knowledge
threatened, and no Seller has made any assignment for the benefit of creditors,
nor has any Seller taken any action with a view to, or which to Sellers'
knowledge would constitute a basis for, the institution of any such insolvency
proceedings.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
7.1. Organization and Standing. Buyer is a limited liability company duly
-------------------------
organized, validly existing and in good standing under the laws of the State of
Delaware.
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<PAGE>
7.2. 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 upon the consummation of the transactions contemplated
by this Agreement. Buyer's execution, delivery and performance of this Agreement
and the transactions contemplated hereby have been duly and validly authorized
by all necessary action on behalf of Buyer and constitute the valid and binding
obligation of Buyer, enforceable in accordance with its terms.
7.3. Qualification. To Buyer's knowledge, there is no fact, allegation,
-------------
condition, or circumstance relating to Buyer, its officers, directors, members,
managers, affiliates or attributable parties (as defined by FCC rules,
regulations or policies), that could reasonably be expected to prevent the grant
of the FCC Consent. Buyer knows of no fact that would, under the Communications
Act of 1934, as amended, or the rules, regulations and policies of the FCC,
disqualify Buyer from becoming the licensee of the Stations or delay FCC Consent
to the assignment provided for herein. Neither Buyer, its officers, directors,
members, managers, affiliate companies nor attributable parties (as defined by
FCC rules regulations and policies) will commit any act or fail to commit any
act or enter into any agreement where such action or inaction would materially
violate the rules or policies of the FCC or prevent or materially delay FCC
Consent to the assignment provided for herein.
7.4. Absence of Conflicting Agreements or Required Consents. Except for
------------------------------------------------------
the FCC Consent required herein and except as stated in that letter to Sellers
from Buyer dated February __,
31
<PAGE>
2000 (the "Buyers' Disclosure Letter"), the execution, delivery and performance
of this Agreement by Buyer: (i) do not violate or conflict with any of the
terms, conditions or provisions of the Certificate of Formation or Regulations
of Buyer; (ii) do not require the consent of any third party not affiliated with
Buyer; (iii) 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 (iv) will not, either alone or with the giving of notice or the
passage of time, violate the terms, conditions or provisions of, or constitute a
default under, any agreement, instrument, license or permit to which Buyer is
now subject.
7.5. Litigation: Compliance with Law. There is no litigation,
-------------------------------
administrative action, arbitration or other proceeding, or petition, complaint
or investigation before any court or governmental body pending against Buyer
that would adversely affect Buyer's ability to perform its obligations pursuant
to this Agreement or the agreements to be executed by Buyer in connection
herewith. Buyer has committed no violation of any applicable law, regulation or
ordinance or any other requirement of any governmental body or court which would
have an adverse effect on Buyer or its ability to perform its obligations
pursuant to this Agreement or the agreements to be executed in connection
herewith.
7.6. Commission or Finder's Fees. Neither Buyer nor any entity acting on
---------------------------
behalf of Buyer has hired, retained or dealt with any broker, finder, consultant
or intermediary (other than the Broker), nor has Buyer or any entity acting on
its behalf, agreed to pay a commission, finder's fee or similar payment in
connection with this Agreement or any matter related hereto. Buyer shall
32
<PAGE>
indemnify and hold each of the Sellers harmless from any and all damages,
expenses and liabilities arising from any claim, demand or charge made against
any Seller for any commission or other form of compensation or payment, based
upon or alleging negotiations or communications with Buyer or any person or
entity acting on Buyer's behalf in connection with this transaction. The
provisions of this Section 7.6 shall survive the Closing and any termination or
assignment of this Agreement.
7.7. Full Disclosure. No representation or warranty by Buyer contained in
---------------
this Agreement (including the Schedules hereto) or in any certificate furnished
pursuant to this Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading.
7.8. Financial Qualifications. Buyer is financially qualified and has the
------------------------
financial resources to close and consummate all the transactions provided for in
this Agreement upon FCC Consent to the assignment.
33
<PAGE>
ARTICLE 8
COVENANTS OF SELLERS
--------------------
8.1. Operation of Stations Prior to the Closing Date:
-----------------------------------------------
8.1.1 Sellers covenant and agree with Buyer that between the date
of this Agreement and the Closing Date or TBA Effective Date as expressly stated
below, Sellers, with respect to each Station shall:
(i) until the TBA Effective Date, operate in the usual and
ordinary course of business consistent with past practice. As used herein, the
"TBA Effective Date" is March 1, 2000;
(ii) until the TBA Effective Date, maintain its books of account
and records in the usual and ordinary manner;
(iii) until the TBA Effective Date, notify Buyer if the regular
broadcast transmission of Stations WCZQ (FM), WDZQ (FM), WSOY-FM, WSOY (AM),
WKOO (FM), WRNS-FM, WERO (FM), WRNN (FM), WYAV (FM), WMYB (FM), WYAK-FM, KLLL-
FM, KONE (FM), or KMMX (FM) from their main transmitting facilities at less than
75% of full authorized effective radiated power is interrupted for ten or more
hours in any period of three (3) consecutive days for reasons other than routine
maintenance;
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<PAGE>
(iv) until the Closing Date, repair, and, if necessary replace any
of the Stations' studio and transmission assets in a reasonable manner
consistent with current and historical practice and maintain the assets in
substantially their current condition, ordinary wear and tear excepted;
(v) until the Closing Date, maintain insurance in accordance with
Section 6.1.7;
(vi) until the Closing Date, not, without the prior consent of
Buyer, which consent shall not be unreasonably withheld, incur any debts,
obligations, or liabilities (absolute, accrued, contingent, or otherwise) that
include obligations (monetary or otherwise) to be performed by Buyer other than
the TBA that exceed Ten Thousand Dollars ($10,000.00) individually or Twenty-
five Thousand Dollars ($25,000.00) in the aggregate;
(vii) until the Closing Date, not, without the consent of Buyer,
which consent shall not be unreasonably withheld, lease, mortgage, pledge, or
subject to a lien, claim, or encumbrance (other than Permitted Liens ) any of
the Station Assets or sell or transfer any of the Station Assets without
replacing such Station Assets with an asset of substantially the same value and
utility;
(viii) until the Closing Date, not, without the prior consent of
Buyer, which consent shall not be unreasonably withheld, (a) modify or extend
any Contracts or (b) enter into any new Contracts the payments under which
exceed Ten Thousand Dollars ($10,000.00) individually or Twenty-five Thousand
Dollars ($25,000.00) in the aggregate;
35
<PAGE>
(ix) until the Closing Date, not make or grant any material wage
or salary increase or generally materially modify the employees' terms and
conditions of employment in a manner inconsistent with current practice and with
respect to any Station Management and on-air personnel, Sellers shall not make
or grant any wage or salary increase or modify any terms and conditions of
employment without the prior consent of Buyer; provided, however, that Sellers
shall be permitted to make bonus payments to any employees including Station
Management and on-air personnel;
(x) until the TBA Effective Date, not make any change in the
accounting principles, methods, or practices followed by it or depreciation or
amortization policies or rates;
(xi) until the Closing Date, other in the ordinary course of
business, not cancel or waive or release any right of material value;
(xii) until the TBA Effective Date, use commercially reasonable
efforts to maintain the present format of the Station, with programming
consistent with past practices;
(xiii) until the Closing date, enter into a legally binding
commitment to do any of the foregoing.
8.2. Sellers shall (i) give or cause the Stations to give Buyer and
Buyer's counsel, accountants, engineers and other representatives, including
environmental consultants, reasonable access during normal business hours and
upon reasonable notice to all of Sellers' properties, books,
36
<PAGE>
Contracts, Trade Agreements, reports and records including financial information
and tax returns relating to the Stations, and to all real estate, buildings and
equipment relating to the Stations, in order that Buyer may have full
opportunity to make such investigation, including but not limited to,
environmental assessments, as it desires of the affairs of the Stations, and
(ii) 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 Stations, that Buyer may reasonably request. The rights of Buyer
under this Section shall not be exercised in such a manner as to interfere
unreasonably with the business of the Stations.
8.2.1 Interim Financial Statements. Sellers shall promptly
----------------------------
deliver to Buyer copies of any monthly financial statements relating to the
Stations' operations prior to the TBA Effective Date that may be prepared or
received by Sellers during the period from the date hereof through the TBA
Effective Date. Such financial statements shall fairly present the financial
position and results of operations of the Stations as of the dates and for the
periods indicated, and if prepared by or on behalf of Sellers, shall be prepared
on a basis consistent and in accordance with the basis upon which the financial
statements in Section 6.1.3 were prepared.
8.3. Other Consents. Sellers will use commercially reasonable efforts to
--------------
obtain all material consents, authorizations, or approvals required for the
consummation of the transactions contemplated by this Agreement.
8.4 [Intentionally omitted.]
37
<PAGE>
8.5. Notification. Sellers shall promptly notify Buyer in writing of (i)
------------
the failure of a Seller or any employee or agent of Sellers to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with hereunder; (ii) the occurrence of any event that may entitle Buyer
to terminate this Agreement pursuant to Section 15.1; or (iii) prior to the TBA
Effective Date, any resignation or termination of any Station Management or
over-the-air personnel at the Stations.
8.6. Updating of Schedules. From time to time prior to the Closing,
---------------------
Sellers will supplement or amend the Schedules delivered in connection herewith
with respect to any matter which exists or occurs after the date of this
Agreement and which, if existing or occurring at or prior to the date of this
Agreement, would have been required to be set forth or described in the
Schedules or which is necessary to correct any information therein. The
provisions of this Section are informational only and Buyer shall not be bound
to the terms of any changed Schedules unless they are incorporated into this
Agreement by a written amendment signed by Buyer, and Buyer agrees to promptly
execute and deliver to Sellers any such amendment to the Schedules so long as
the aggregate cost thereof to Buyer shall not exceed Fifty Thousand Dollars
($50,000.00).
8.7. FCC Filings. Sellers shall file or cause to be filed on a current
-----------
basis until the Closing Date all applications, fees, reports and documents
required to be filed with the FCC with respect to the Stations. Copies of each
such application, fee filing, report and document filed between the date hereof
and the Closing Date shall be furnished to Buyer promptly after its filing.
38
<PAGE>
8.8. Updating of Information. Between the date of this Agreement and the
-----------------------
TBA Effective Date, Sellers will deliver to Buyer, on a monthly basis within
thirty (30) days of the end of each month, information relating to the operation
of the Stations, including weekly sales reports and such other financial
information that may be reasonably requested.
8.9. Indemnification. (i) From and after the Closing Date, Sellers shall
---------------
indemnify and hold Buyer, its Affiliates, and its assigns harmless from and
against all costs, losses and damages (including reasonable attorney fees)
incurred by Buyer or such Affiliates or assigns as a result of or arising out of
(a) the material breach by Sellers of any of their representations and
warranties contained in this Agreement, (b) the failure by Sellers to perform
their covenants set forth in this Agreement, (c) subject to the provisions of
the TBA, the conduct of the operations of the Stations by Sellers or acts or
omissions of Sellers creating material liability with respect to the Station
Assets on or before the Closing Date or to the extent that the Station Assets
cause material liability or damage unless such liability or damage resulted from
material acts or omissions attributable to Buyer, its Affiliates, assigns,
employees, agents or those acting on Buyer's behalf and (d) any and all
obligations or liabilities of Sellers under any contract or agreement not
expressly assumed by Buyer pursuant to the terms hereof (collectively, the
"Indemnified Claims"); provided however, that Seller's liability under this
Section 8.9 shall in no event exceed the Holdback Amount. Notwithstanding
anything to the contrary in this Agreement, Sellers shall not indemnify or hold
harmless Buyer, its Affiliates or assigns for any claims asserted against Buyer
or loss or damage sustained by Buyer that may be attributable to a Permitted
Lien or any act or material omission by Buyer, its Affiliates, assigns,
employees, agents or those acting on Buyer's behalf.
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(ii) On the Closing Date, Buyer and Sellers will enter into the
Indemnification Escrow Agreement in the form of Exhibit 8.9 attached hereto in
accordance with which Buyer shall at Closing deposit an amount of the Purchase
Price equal to Five Hundred Thousand Dollars ($500,000.00) (the "Holdback
Amount") with the escrow agent identified in the Indemnification Escrow
Agreement (the "Indemnification Escrow Agent"). This amount shall represent the
full extent of Sellers' liability for any Indemnified Claim;
(iii) Buyer shall be entitled to payment pursuant to the terms of
this Section 8.9 and the Indemnification Escrow Agreement for all amounts due to
Buyer with respect to any claim by Buyer against Sellers for liabilities of
Sellers payable under this Section with respect to breaches of representations
and warranties of Sellers; and
(iv) Sellers hereby covenant and agree that if, during the term of
the Indemnification Escrow Agreement, Sellers are or become obligated to
indemnify Buyer under this Section 8.9, Sellers will execute and deliver to the
Indemnification Escrow Agent written instructions to release to Buyer such
portion of the Holdback Amount as is necessary to indemnify Buyer for amounts
due under this Section.
8.10. Asset Purchase Agreement. Sellers shall place a copy of this
-------------------------
Agreement in the local public inspection file of each Station and shall append a
copy of this Agreement to each application to the FCC for the FCC Consent.
40
<PAGE>
8.11. [Intentionally omitted.]
8.12 Capital Leases. With respect to Tangible Personal Property held or
--------------
used by Sellers pursuant to the terms of any Capital Lease, Sellers agree to
discharge their obligations under that Capital Lease within five (5) days after
Closing, acquire title to the Tangible Personal Property and convey the Tangible
Personal Property to Buyer within thirty (30) days after Closing free and clear
of all liens, claims or encumbrances other than Permitted Liens identified in
Schedule 2.1.
ARTICLE 9
COVENANTS OF BUYER
------------------
9.1. Notification. Buyer shall promptly notify Sellers in writing of (i)
------------
any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against Buyer which challenges the transactions
contemplated hereby or (ii) the failure of Buyer, or any employee or agent of
Buyer to comply with or satisfy in any material respect any covenant, condition
or agreement to be complied with or be satisfied by it hereunder and (iii) the
occurrence of any event that would entitle Sellers to terminate this Agreement
pursuant to Section 15.1.
9.2. [Intentionally omitted.]
9.3. Post-Closing Access. Buyer, for a period of one (1) year
-------------------
following the Closing Date, shall make available during normal business hours
for audit, copying and inspection by Sellers and their representatives, for any
reasonable purpose and upon reasonable notice, all records, files,
41
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documents and correspondence transferred to it hereunder relating to the pre-
closing period. All information, records, files, documents and correspondence
made available or disclosed under this Section 9.3 shall be kept confidential as
provided for in Section 10.1. Buyer will, in addition, make available to Seller,
its employees and agents, for inspection, copying and audit, all records and
documents Sellers may reasonably request in order to make the prorations and
Allocations provided for in this Agreement. Buyer agrees to cooperate with
Sellers by providing all information Seller may reasonably request for this
purpose.
9.4. Other Consents. Buyer will obtain all necessary consents,
--------------
authorizations, or approvals, in each case, required for Buyer's consummation of
the transactions contemplated by this Agreement.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Sellers covenant and agree that they shall act in accordance with
the following:
10.1. Confidentiality. Buyer and Sellers shall each keep confidential
---------------
all information obtained by them with respect to the other party hereto in
connection with this Agreement and the negotiations preceding this Agreement,
and will use such information solely in connection with the transactions
contemplated by this Agreement, and if the transactions contemplated hereby are
not consummated for any reason, each shall return to each other party hereto,
without retaining a copy thereof, any schedules, documents or other written
information obtained from such other party in
42
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connection with this Agreement and the transactions contemplated hereby except
to the extent required or useful in connection with any claim made with respect
to the transactions contemplated by this Agreement or the negotiation thereof.
Notwithstanding the foregoing, no 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, or
(ii) is or becomes publicly known through no fault of the receiving party or its
agents, or (iii) is required to be disclosed pursuant to an order or request of
a judicial or government authority (provided the non-disclosing party is given
reasonable prior notice such that it may seek, at its expense, confidential
treatment of the information to be disclosed), or (iv) is required to be
disclosed under applicable law or rule, as determined by counsel for the
receiving party.
10.2. Cooperation. Buyer and Sellers shall cooperate fully with one
-----------
another 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.
10.3. Control of Stations. As set forth in the Time Brokerage Agreement
-------------------
executed contemporaneously herewith, prior to Closing, Buyer shall not, directly
or indirectly, control the operations of the Stations.
10.4. Bulk Sales Laws. Buyer hereby waives compliance by Sellers with the
---------------
provisions of the "bulk sales" or similar laws of any state. Sellers shall
indemnify Buyer and hold it harmless from any and all loss, cost, damage and
expense (including but not limited to, reasonable attorneys'
43
<PAGE>
fees) sustained by Buyer as a result of any failure of Sellers to comply with
any "bulk sales" or similar laws.
10.5. Public Announcements. Neither Buyer nor Sellers shall issue any
--------------------
press release or make any disclosure with respect to the transaction
contemplated by this Agreement without the prior written approval of the other
party, except as may be required by applicable law or by obligations pursuant
to any listing agreement with any securities exchange or any stock exchange
regulations.
10.6. HSR Act. [Intentionally Omitted]
--------
10.7. Employee Matters. Commencing with the execution of this
----------------
Agreement, Sellers shall make available the Stations' personnel during normal
business hours for Buyer to interview prior to the TBA Effective Date. Prior to
the TBA Effective Date and subject to the terms of the Time Brokerage Agreement,
Buyer shall notify Sellers of the names of the employees to whom Buyer shall
offer employment (herein referred to as "Transferred Employees"). Sellers hereby
consent to Buyer making such offers of employment relating to the Stations
subject to commencement of the Time Brokerage Agreement. Sellers shall be
responsible for all obligations or liabilities of Sellers to those employees not
offered employment by Buyer (herein referred to as "Retained Employees"). For a
period of one (1) year from the termination of the TBA or this Agreement, Buyer
agrees that it will not enter into any agreement with any of Sellers' employees
that would prohibit or restrict any employee, directly or indirectly, from
becoming an employee, agent
44
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or consultant of Sellers if the TBA should be terminated for any reason or if
the Closing should fail to occur for any reason. Notwithstanding anything to the
contrary in this Agreement, a breach of this covenant by Buyer shall be
enforceable by a decree of specific performance in addition to the Liquidated
Damages set forth in Section 14.2.
10.8. Phase I Environmental Assessment. (i) During the thirty (30) day
--------------------------------
period following execution of this Agreement, Buyer may, at its sole expense,
conduct Phase I environmental assessments of the Real Estate or any portion
thereof. If the Phase I assessments disclose the existence of a Material
Environmental Problem, Buyer shall give Seller written notice thereof together
with a copy of the Phase I assessments within forty (40) days of the execution
of the Agreement, and Seller shall have ten (10) business days following receipt
thereof in which to notify Buyer whether it will cure the Material Environmental
Problem. If Seller elects to cure such Material Environmental Problem, Seller
may either (a) perform or cause to be performed, the cure or remedy of such
Material Environmental Problem and, if required, delay the Closing for ninety
(90) days or such longer period as the parties may mutually agree without
incurring any additional liability or obligation as a result of such delay,
until such time as the remediation work is substantially completed, or (b)
proceed to Closing without performing the remediation work, and allow Buyer, at
Closing, a credit against the Purchase Price in an amount equal to the mutually
agreed reasonably estimated cost ("Estimated Cost") of such remediation work, in
which event Buyer shall take title to the Real Estate affected thereby subject
to such Material Environmental Problem. If Seller fails to give Buyer timely
notice of its intent to cure the Material Environmental Problem, or if Seller
elects not to cure the Material Environmental Problem, then Buyer may either (a)
proceed
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to Closing with an adjustment to the Purchase Price equal to the Estimated Cost
of such remediation work, not to exceed $100,000.00 in the aggregate, in which
event Buyer shall take title to the Real Estate affected thereby subject to the
Material Environmental Problem, or (b) terminate the Agreement, without further
liability of either party to the other, except as otherwise specifically
provided herein. Buyer shall give Pinnacle written notice of its election under
subclause (a) or (b) above within the next ten (10) business days. Buyer's
failure to deliver such notice to Pinnacle in a timely manner shall be deemed to
be an election by Buyer to proceed to Closing in accordance with subclause (a).
A "Material Environmental Problem" is defined as the violation of applicable
federal or state laws pertaining to the placement, storage or existence of any
hazardous or toxic substance, the aggregate Estimated Cost of correction or cure
of which exceeds One Hundred Thousand Dollars ($100,000.00);
(ii) In the event Seller has not received written notice of a
Material Environmental Problem and a copy of the Phase I assessment within forty
(40) days from the execution of this Agreement, Buyer shall be deemed to have
waived its rights hereunder the provisions of this Section 10.8(i) shall be of
no further force and effect.
(iii) Sellers agree to provide copies to Buyer of the Phase I
assessments of the Real Estate in Sellers' possession; provided, however, that
no representation or warranty is made with respect to such documents whatsoever.
In the event the Phase I assessments provided by Sellers disclose any matter
that does not constitute a Material Environmental Problem, Sellers and Buyer
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<PAGE>
agree that Sellers have no obligation or liability of any kind with regard to
such matter and that both parties shall proceed to Closing with no further
adjustments to the Purchase Price for such matter.
10.9. Title to Real Estate (i) Commencing upon the execution of this
--------------------
Agreement, Buyer shall, at its sole expense, conduct land surveys and title
inspections of the Real Estate.
(ii) Buyer shall promptly notify Sellers in writing of, and provide
Sellers and Sellers' counsel with copies of, any defects in title or other
conditions affecting title, exclusive of Permitted Liens, which, if uncured,
could reasonably be expected to prevent the subsequent sale by Buyer of the
Owned Real Estate affected thereby or could prohibit Buyer's continued use of
the Leased Real Estate for the operation of the Stations (each, a "Title
Objection"). In the event Sellers have not received notification of such Title
Objections on or before that date which is thirty (30) days prior to the
Closing, the terms and provisions of this Section 10.9 shall be deemed to be
waived by Buyer and shall be of no further force and effect.
(iii) Upon receipt of Buyer's notification described above, and if
the aggregate Estimated Cost of the cure or remedy of such Title Objections is
less than $100,000.00, Sellers may elect to either (a) take such steps as may be
reasonably required in order to cure or remedy the Title Objections, in which
event Sellers may, at their option, delay the Closing Date for ninety (90) days
or such longer period of time as Buyer and Sellers may mutually agree upon to
complete the cure of such Title Objection, or (b) proceed to Closing without
performing such cure, in which event Seller shall provide Buyer at Closing with
a credit against the Purchase Price in an amount equal to the
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<PAGE>
Estimated Cost of such cure and Buyer shall take title to the Real Estate
subject to such Title Objections.
(iv) In the event the Estimated Cost to cure such Title Objections
exceeds $100,000.00 in the aggregate, Buyer may either (a) proceed to Closing
with a credit against the Purchase Price in an amount equal to $100,000.00 and
Buyer shall take title to the Real Estate subject to such Title Objections, or
(b) terminate the Agreement, in which case the Earnest Money Escrow Deposit will
be returned to Buyer and neither Buyer nor Sellers will have any further
obligations hereunder except as otherwise specifically provided herein.
(v) Title Objections shall be deemed cured or remedied hereunder if
such Title Objection could not be reasonably expected to prohibit Buyer from (a)
occupying the Real Estate in accordance with the terms of the applicable deed or
Real Estate Lease and (b) using the Real Estate as it is currently used and
operated, and to Sellers' knowledge, the continued use of the Real Estate for
the operation of the Stations.
(v) Notwithstanding anything to the contrary contained herein,
Sellers' sole liability under this Section 10.9 shall in no event exceed the
aggregate amount of $100,000.00. In no event shall a Title Objection be an
Indemnified Claim.
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<PAGE>
10.10. Other Agreements. Concurrently with the execution and delivery
----------------
of this Agreement, Seller and Buyer shall execute, deliver and perform in all
material respects the Time Brokerage Agreement appended hereto as Exhibit 10.10.
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 all of the following
conditions:
11.1. Representations and Warranties. All representations and
------------------------------
warranties of Sellers made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all material
respects as of the date hereof and on and as of the Closing Date as if made on
and as of that date, except for changes expressly permitted or contemplated by
the terms of this Agreement.
11.2. Compliance with Agreement. All of the terms, covenants and
-------------------------
conditions to be complied with and performed by Sellers on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
11.3. Third Party Consents and Approvals; Estoppel Certificates.
---------------------------------------------------------
Sellers shall have obtained all third-party consents and approvals, if any,
required for the transfer or continuance, as the case may be, of the Contracts
designated by an asterisk as "material" on Schedule 1.1.3 (and the
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<PAGE>
material contracts that would have been on Schedule 1.1.3 had they been in
existence on the date of this Agreement).
11.4. Closing Certificates. Buyer shall have received a certificate,
--------------------
dated as of the Closing Date, from the Sellers, executed by the president of
each Seller to the effect of Sections 11.1 and 11.2 . With respect to the
Section 11.2 certification, it shall be made to each Seller's knowledge.
11.5. Governmental Consents.
---------------------
11.5.1 FCC. The FCC Consent shall have been issued by the FCC
---
without any conditions that would otherwise permit Buyer to terminate this
Agreement pursuant to Section 15.1(v), below, and unless otherwise agreed to by
the parties, each such FCC Consent shall have become a Final Order (as defined
in Section 4.1);
11.5.2 HSR Act. [Intentionally Omitted]; and
-------
11.5.3 Other Consents. All other material authorizations,
--------------
consents, approvals, and clearances of federal, state, or local Governmental
Entities required to permit the consummation of the transactions contemplated by
this Agreement shall have been obtained.
11.6. Adverse Proceedings. No injunction, order, decree or judgment of
-------------------
any court, agency or other Governmental Entities shall have been rendered
against Sellers or Buyer which would
50
<PAGE>
render it unlawful, as of the Closing Date, to effect the transactions
contemplated by this Agreement in accordance with its terms.
11.7. Closing Documents. Sellers shall have executed and delivered or
-----------------
caused to be delivered to Buyer, on the Closing Date (i) all deeds, bills of
sale, endorsements, assignments and other instruments of conveyance and transfer
consistent with the terms hereof, in form and substance and sufficient to vest,
with respect to the Owned Real Estate, insurable, fee simple title, and with
respect to the other Station Assets title, in and effect the transfer and
conveyance of, the Station Assets to Buyer in accordance with the terms of this
Agreement, (ii) all other material documents, instruments, certificates and
agreements required of Sellers under the terms of this Agreement; and (iii) any
other documents, instruments or certificates reasonably requested by Buyer in
order to effectuate the transactions contemplated herein, each in reasonably
satisfactory form and substance to Buyer.
11.8. Operation of Stations. With the exception of such temporary
---------------------
reduced power operations as are necessary for routine maintenance, at Closing
the Stations will operate in material conformity with the Station Licenses. The
parties acknowledge that the operations pursuant to STAs set out in Section
1.1.1 hereto shall not be deemed a violation of this condition. At Closing, the
following Stations will be operating at 90% or more of full authorized effective
radiated power: WCZQ (FM), WDZQ (FM), WSOY-FM, WSOY (AM), WKOO (FM), WRNS-FM,
WERO (FM), WRNN (FM), WYAV (FM), WMYB (FM), WYAK-FM, KLLL-FM, KONE (FM), and
KMMX
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(FM). At Closing, to Sellers' knowledge the Stations will be in substantial
compliance with the Station Licenses.
11.9. Opinion of Counsel. Buyer shall have received a written opinion of
------------------
Sellers' counsel dated as of the Closing Date in customary form and substance.
11.10. KLLL (FM) Tower Site Lease. Sellers shall have used commercially
--------------------------
reasonable efforts to obtain a clarification regarding the expiration date of
the KLLL (FM) Tower Site Lease, such expiration date to be mutually acceptable
to Buyer and Sellers.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLERS
--------------------------------
The obligations of Sellers hereunder are, at their option, subject to
satisfaction at or prior to the Closing Date of all of the following
conditions:
12.1. Representations, Warranties and Covenants. All representations and
-----------------------------------------
warranties of Buyer made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all material
respects as of the date hereof and on and as of the Closing Date as if made on
and as of that date, except for changes expressly permitted or contemplated by
the terms of this Agreement and except those given as of a specified date.
12.2. Compliance with Agreement. 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.
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12.2.1 Certifications, etc. Sellers shall have received a
-------------------
certificate, dated as of the Closing Date, from the Buyer, executed by the
President of Buyer to the effect of Sections 12.1 and 12.2. With respect to the
Section 12.2 certification, it shall be made to Buyer's knowledge.
12.3. Governmental Approval.
---------------------
12.3.1 FCC. The FCC Consent shall have been issued by the
---
FCC and each such FCC Consent shall have become a Final Order (as defined in
Section 4.1);
12.3.2 HSR Act. [Intentionally Omitted]; and
-------
12.3.3 Other Consents. All other material authorizations,
-------------
consents, approvals, and clearances of federal, state or local Governmental
Entities required to permit the consummation of the transactions contemplated by
this Agreement shall have been obtained.
12.4. Adverse Proceedings. No injunction, decree or judgment of any
-------------------
court, agency or other governmental entities shall have been rendered against
Buyer or Sellers which would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
12.5. Closing Documents. Buyer shall have executed and delivered or
-----------------
caused to be delivered to Sellers, on the Closing Date, (a) an assumption
agreement with respect to Assumed Liabilities, (b) the Indemnification Escrow
Agreement, (c) the Earnest Money Escrow Agreement,
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(d) the assignment and assumption agreement with respect to the Real Estate
Leases, and (e) any other documents, instruments or certificates requested by
Sellers in order to effectuate the transactions contemplated herein, each in
reasonably satisfactory form and substance to Sellers.
12.6. Sellers shall have received a written opinion of Buyer's counsel
dated as of the Closing Date in customary form and substance.
12.7 Seller shall have received the Purchase Price, subject to the
Holdback Amount as provided for in Section 8.9.
12.8 The Indemnification Escrow Agent shall have received the Holdback
Amount.
ARTICLE 13
TRANSFER TAXES: FEES AND EXPENSES
---------------------------------
13.1. Expenses. Except as set forth in Sections 13.2 and, 13.3 below,
--------
each party hereto shall be solely responsible for all costs and expense 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. Except as provided in Section
----------------------------------
3.3.1 and subject to the provisions of the TBA, all recordation, transfer and
documentary taxes and fees, and any excise, sales or use taxes, and all similar
costs of transferring the Station Assets, including without limitation the Real
Estate, in accordance with this Agreement shall be borne equally by Buyer and
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Sellers. Buyer and Sellers shall, in good faith, attempt to calculate all such
taxes and fees prior to the Closing Date and to settle their respective
obligations therefore on or before the Closing Date.
13.3. Governmental Filing or Grant Fees. Any filing or grant fees
---------------------------------
imposed by any governmental authority the consent of which is required for the
consummation of the transactions contemplated hereby, including but not limited
to the FCC, shall be borne equally by Buyer and Sellers.
ARTICLE 14
ESCROW DEPOSIT; LIQUIDATED DAMAGES; SPECIFIC PERFORMANCE; CROSS-DEFAULT
-----------------------------------------------------------------------
14.1. Escrow Deposit. Upon execution and delivery of this Agreement by
--------------
all parties, Buyer will deposit with Star Media, Inc., ("Earnest Money Escrow
Agent"), an irrevocable letter of credit in the amount of Three Million Seven
Hundred Fifty Thousand Dollars ($3,750,000.00) (the "Earnest Money Escrow
Deposit") in favor of Pinnacle as beneficiary thereunder. The Earnest Money
Escrow Deposit shall be held and disbursed by Earnest Money Escrow Agent
pursuant to the terms of the Earnest Money Escrow Agreement, appended hereto as
Exhibit 14.1 (the "Earnest Money Escrow Agreement"), which Earnest Money Escrow
Agreement shall be executed and delivered concurrently with this Agreement by
the Sellers, Buyer and Earnest Money Escrow Agent. At Closing, the Earnest
Money Escrow Deposit shall be returned to Buyer. If the Closing does not occur
solely because Buyer breached this Agreement or defaulted in the performance of
any of its obligations hereunder, then Buyer and Sellers shall execute written
instructions to the Earnest Money Escrow Agent
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<PAGE>
directing it to deliver the Earnest Money Escrow Deposit to Sellers as
liquidated damages, as provided in Section 14.2. If the Closing does not occur
solely because Sellers materially breached this Agreement or materially
defaulted in the performance of any of their obligations hereunder, then Buyer
and Sellers shall execute written instructions to the Earnest Money Escrow Agent
directing it to deliver the Earnest Money Escrow Deposit to Buyer and Buyer may
seek specific performance of this Agreement , as provided in Section 14.3.
14.2. Liquidated Damages. If this Agreement is terminated by Sellers
------------------
pursuant to Section 15.1 (ii)(b), the parties agree and acknowledge that Sellers
will suffer damages that are not practicable to ascertain. Accordingly, in such
event, Sellers shall be entitled to attorneys' fees, consultant fees and
litigation costs (collectively "Costs") plus the sum of Three Million Seven
Hundred Fifty Thousand Dollars ($3,750,000.00) as liquidated damages. The
parties agree that the foregoing liquidated damages do not constitute a penalty
and are a fair and reasonable estimate of the parties made in good faith and
considering all the circumstances existing as of the date hereof of the actual
damages to Sellers reasonably expected to result from the termination of this
Agreement pursuant to Section 15.1 (ii)(b). Sellers agree that, to the fullest
extent permitted by law, and subject to Section 10.7, the right of Sellers to
receive Costs plus the Earnest Money Escrow Deposit shall be their sole and
exclusive remedy if the Closing does not occur with respect to any damages
whatsoever that Sellers may suffer or allege to suffer as a result of any claim
or cause of action asserted by Sellers relating to or arising from breaches of
the representations, warranties or covenants of Buyer contained in this
Agreement and to be made or performed at or prior to the Closing. Except for a
termination pursuant to Section 15.1 (ii)(b) (for which the sole recourse of
Sellers shall be as
56
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provided in this Section 14.2) or pursuant to Sections 10.8, 10.9, 15.1(i) or
16.1 (for which neither party shall have any liability to the other), the
termination of this Agreement shall not relieve the parties for any liability or
obligation relating to their breaches of this Agreement occurring prior to such
termination.
14.3. Specific Performance. Sellers hereby acknowledge that the Station
--------------------
Assets are unique, and that the harm to Buyer resulting from Sellers' default of
their obligation to sell the Station Assets to Buyer cannot be adequately
compensated by damages. Accordingly, Sellers agree that if, after grant of the
FCC Consent, Buyer is not in material breach of this Agreement, and if Seller
materially defaults in its obligation to convey the Station Assets hereunder,
Buyer shall have the right to have the terms of this Agreement specifically
performed by Sellers and shall be entitled to attorneys' fees, consultant fees
and litigation costs, and Sellers hereby agree not to assert any objections to
the imposition of remedy of specific performances by any court of competent
jurisdiction. This remedy shall be the sole and exclusive remedy of Buyer
hereunder.
14.4. Cross-Default. Notwithstanding any provision in this Agreement to
-------------
the contrary, an uncured event of default under the Time Brokerage Agreement,
the Indemnification Escrow Agreement or the Earnest Money Escrow Agreement (the
"Collateral Agreements") by Sellers or Buyer shall be deemed an uncured event of
default by such party under this Agreement and under each of the Collateral
Agreements, and the party not in material breach or material default shall have
available all remedies provided to a party not in material breach in this
Agreement and each of the Collateral Agreements; provided, however that except
for the provision of the remedies of specific
57
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performance and liquidated damages as set forth in Section 10.7 hereof, Buyer's
aggregate liability to Sellers for all uncured events of default under this
Agreement and the Collateral Agreements shall not exceed the liquidated damages
specified in Section 14.2.
ARTICLE 15
TERMINATION RIGHTS
------------------
15.1. Termination. This Agreement may be terminated at any time prior
-----------
to Closing as follows:
(i) by the mutual consent of Buyer and Sellers;
(ii) by written notice of (a) Buyer to Sellers if Sellers breach
or are in breach in any material respect any of their representations or
warranties or default or are in default in any material respect in the
observance or in the due and timely performance of any of their covenants or
agreements herein contained and such breach or default shall not be cured within
thirty (30) days of the date of Sellers' receipt of the notice of breach or
default served by Buyer or such additional time as the parties mutually agree
to, or (b) Sellers to the Buyer if Buyer breaches or is in breach in any
material respect any of its representations or warranties or defaults or is in
default in any material respect in the observance or in the due and timely
performance of any of its covenants or agreements herein contained and such
breach or default shall not be cured within thirty (30) days of Buyer's receipt
of the notice of breach or default served by Sellers or such additional time as
the parties mutually agree to or by failure of the FCC to give its consent to
any of the assignments provided for
58
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herein for reasons attributable to the Buyer, its officers, directors, managers,
members, employees, agents or attributable parties (as defined in FCC rules,
regulations and policies); but such notice and cure period shall not apply in
the case of Buyer's or Sellers' failure to consummate the transactions in
accordance with the terms and times specified in Section 4.1 of this Agreement;
(iii) by Buyer or Sellers upon prior written notice to the other,
if a court of competent jurisdiction or other Governmental Entity shall have
issued an order, decree or ruling or taken any other action (which order, decree
or ruling the parties hereto shall use their best efforts to lift), in each case
permanently restraining, permanently enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree, ruling or
other action shall have become final and nonappealable;
(iv) by the party whose qualifications are not at issue, if, for
any reason, the FCC denies or dismisses any of the FCC Applications and the time
for reconsideration or court review under the Communications Act with respect to
such denial or dismissal has expired and there is not pending with respect
thereto a timely filed petition for reconsideration or request for review;
(v) by written notice of Buyer to Sellers if the FCC Consents
contain a condition that materially reduces the value of this transaction to
Buyer (unless such condition relates to divestiture requirements or other
matters attributable to Buyer) and the time for reconsideration or court review
under the Communications Act with respect to such condition(s) has expired
without the filing with respect thereto of a timely petition for reconsideration
or request for review; or
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(vi) by written notice of Buyer to Sellers, or by Sellers to the
Buyer, if the Closing shall not have been consummated within twelve (12) months
after acceptance for filing of the FCC Applications.
(vii) Notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
ARTICLE 16
RISK OF LOSS
------------
16.1. Risk of Loss. Subject to the provisions of the TBA, the risk of
------------
loss or damage to the Station Assets shall be upon Sellers at all times prior to
the Closing Date, except for loss or damage resulting from the material acts or
material omissions of Buyer, its Affiliates, subsidiaries, assigns, employees,
agents or those acting on Buyer's behalf. Following the Closing Date, the risk
of loss or damage to the Station Assets shall be upon Buyer. In the event of
loss or damage prior to the Closing Date, Sellers shall promptly notify Buyer
thereof, and if the lost or damaged Station Assets are, in the aggregate,
reasonably estimated to be less than One Hundred Fifty Thousand Dollars
($150,000.00), then unless the loss or damage is attributable to the acts or
omissions of Buyer, its Affiliates, subsidiaries, assigns, employees, agents or
those acting on Buyer's behalf, Sellers shall, at their sole cost and expense,
replace or repair such Stations Assets prior to the Closing Date or deliver to
Buyer at the Closing an amount in cash equal to the Estimated Cost of
replacement or repair of such Stations Assets, as mutually agreed in good faith
by Buyer and Sellers. Notwithstanding the foregoing, if the cost of such amount
required to replace or repair such Station
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Assets exceeds One Hundred Fifty Thousand Dollars ($150,000.00), Sellers may
elect not to replace or repair such Stations Assets; provided however that in
such event Buyer, at its option, may elect to terminate this Agreement or agree
to accept from Sellers, at the Closing, an amount in cash equal to the cost to
replace or repair such Station Assets, as mutually agreed in good faith by Buyer
and Sellers, and Buyer shall waive any claim against Sellers for any default or
breach with respect to the loss or damage. Buyer may terminate this Agreement,
without any additional obligation to Buyer or Sellers, if the regular broadcast
transmission of Stations WCZQ (FM), WDZQ (FM), WSOY-FM, WSOY (AM), WKOO (FM),
WRNS-FM, WERO (FM), WRNN (FM), WYAV (FM), WMYB (FM), WYAK-FM, KLLL-FM, KONE
(FM), or KMMX (FM) from their main transmitting facilities is less than ninety
percent (90%) of its licensed power for three (3) or more consecutive days or
five (5) or more days in any thirty (30) day period, unless such transmission
deficit is attributable to Buyer, its Affiliates, subsidiaries, assigns,
employees, agent or those acting on their behalf and Sellers have not taken
prompt action to cure such deficit or unless an STA has been filed with the FCC
and Seller is diligently pursuing a cure for such deficit for time not to exceed
ninety (90) days or such longer period as the parties mutually agree. Either
party may extend the Closing Date by up to thirty (30) days in order to allow
Sellers or Buyer to complete any repair or replacement, required or authorized
by this Section.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1. Survival of Representations and Warranties. The representations and
------------------------------------------
warranties contained in this Agreement and in any schedule, instrument or
certificate delivered pursuant hereto,
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shall survive the Closing for one (1) year after the Closing Date and at that
time shall no longer be of any force, effect or validity. At Closing, an
Indemnification Escrow Agreement shall be duly executed and delivered by Buyer,
Sellers and Star Media Group, Inc. as the Indemnification Escrow Agent in
substantially the form of Exhibit 8.9 hereto. Buyer's rights to reimbursement or
indemnification for damages resulting from any untrue or incorrect
representation or warranty of the Sellers shall not be affected by any
investigation made by Buyer or whether or not Buyer relied upon such untrue or
incorrect representation or warranty.
17.2. Certain Interpretive Matters and Definitions.
--------------------------------------------
17.2.1 In General. Unless the context otherwise requires, (i) all
----------
references to Sections, Articles or Schedules are to Sections, Articles or
Schedules of or to this Agreement, (ii) each term defined in this Agreement has
the meaning assigned to it, (iii) each accounting term not otherwise defined in
this Agreement has the meaning assigned to it in accordance with generally
accepted accounting principles in effect as of the date hereof, (iv) "or" is
disjunctive but not necessarily exclusive, and (iv) words in the singular
include the plural and vice versa;
----------
17.2.2 Affiliate. Unless otherwise specified, the term "Affiliate"
---------
has the meaning given it in Rule 12b-2 of Regulation 12B under the Securities
Exchange Act of 1934, as amended;
17.2.3 Money. All references to "$" or dollar amounts will be to
-----
lawful currency of the United States of America; and
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17.2.4 Knowledge. Representations made "to the best of [a party's]
---------
knowledge" or "to [a party's] knowledge" will vary in meaning, depending on the
date they are given or reaffirmed. On the date of this Agreement, it is
sufficient for such representations to mean, (a) in the case of Sellers, the
actual knowledge of Edward J. Ferreri, after consultation with Sellers'
attorneys and (b) in the case of Buyer, the actual knowledge of Carl Hirsch,
after consulting with Buyer's attorneys. In any representations given or
reaffirmed after the date of this Agreement, representations made or reaffirmed
"to the best of [a party's] knowledge" or "to [a party's] knowledge"mean (x) in
the case of Sellers, the actual knowledge of Edward J. Ferreri after
consultation with the general managers of the Stations, Sellers' attorneys, and
Sellers' corporate consulting chief engineer and (z) in the case of Buyer, the
actual knowledge of Carl Hirsch after consultation with general managers,
Buyers' attorneys and consulting engineers.
17.3. Further Assurances. At and after the Closing Date, Sellers
------------------
shall from time to time, at the request of and without further cost or expense
to Buyer, execute and deliver such other instruments of assignment, conveyance
and transfer and take such other actions as may reasonably be requested in order
to more effectively consummate the transactions contemplated hereby, and Buyer
shall from time to time, at the request of and without further cost or expense
to Sellers, execute and deliver such other instruments and take such other
actions as may reasonably be requested in order to more effectively assume the
Assumed Liabilities.
17.4. Audited Financial Statements. At all times after the date
----------------------------
hereof, Sellers shall, and shall cause their representatives (including their
independent public accountants) to, cooperate in all
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reasonable respects with the efforts of Buyer and its independent auditors to
prepare such audited and interim unaudited financial statements of the Stations
as Buyer may require. Sellers shall use its best efforts to execute and deliver
to Buyer's independent accountants such customary management representation
letters as they may require as a condition to their ability to sign an
unqualified report upon the audited financial statements of the Stations for the
periods for which such financial statements may be required. Sellers, at Buyer's
expense, shall cause their independent public accountants to make available to
Buyer and its representatives all of their work papers related to the financial
statements or Tax Returns of Sellers (to the extent they relate to the
Stations), and to provide Buyer's independent public accountants with full
access to those personnel who previously have been involved in the audit or
review of Sellers' financial statements or Tax Returns.
17.5. Assignment. Neither this Agreement nor any of the rights, interests
-----------
or obligations hereunder shall be assigned by any of the parties hereto;
provided however, that without releasing Buyer from its obligations or
liabilities hereunder, Buyer may assign its rights hereunder to a subsidiary or
Affiliate of Buyer only to the extent that such assignment would not result in a
(i) major change to the FCC Applications under applicable FCC rules and
regulations or (ii) any delay whatsoever in the consummation of the transactions
contemplated hereunder. Prior to such assignment, Buyer will notify Sellers and
the assignee will submit to Sellers a written assumption agreement satisfactory
to Sellers in which the assignee agrees to assume all of Buyer's
representations, warranties and covenants under this Agreement and the
Collateral Agreements.
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17.6. Amendments. No amendment, waiver of compliance with any provision
----------
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
17.7. Headings. The headings set forth in this Agreement are for
--------
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.8. Governing Law. The construction and performance of this Agreement
--------------
shall be governed by the laws of the State of Delaware without giving effect to
the choice of law provisions thereof.
17.9. Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received on the date of personal
delivery; on the third day after deposit in the U.S. Mail if mailed by
registered or certified mail, postage prepaid and return receipt requested; on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery and shall be
addressed to the following addresses:
(i) In the case of Sellers:
Mr. Philip D. Marella
Pinnacle Broadcasting Company, Inc.
2073 Cheshire Road
Binghamton, NY 13903
With a copy to:
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Edward J. Ferreri
Pinnacle Broadcasting Company, Inc.
1705 West Northwest Highway
Suite 275
Grapevine, TX 76051
and
Wade H. Hargrove, Esq.
Brooks, Pierce, McLendon,
Humphrey & Leonard, L.L.P.
First Union Capitol Center
150 Fayetteville Street Mall
Suite 1600
Raleigh, NC 27601
(ii) In the case of Buyer:
Mr. Samuel Weller
NextMedia Group, LLC
6312 South Fiddler's Green Circle
Suite 360-E
Englewood, CO 80111
With a copy to:
Matthew L. Leibowitz, Esq.
Leibowitz & Associates, P.A.
1 S.E. Third Avenue, Suite 1450
Miami, Florida 33131
17.10. Barter and Trade. Buyer shall not assume any Trade Agreements
----------------
hereunder unless (i) Buyer obtains the value of the goods and services provided
in exchange for the advertising to be broadcast and (ii) those goods and
services are useful to the business of the Stations as it is currently
conducted. If the value of trade, barter, and similar arrangements for the sale
of advertising time for other than cash that are assumed by Buyer under this
Agreement is, in the aggregate, One
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<PAGE>
Hundred Thousand Dollars ($100,000.00) or more, then Sellers shall pay Buyer the
excess above the first One Hundred Thousand Dollars ($100,000.00) at Closing.
17.11. Schedules. The Schedules and Exhibits attached to this Agreement
---------
and the other documents delivered pursuant hereto are hereby made a part of this
Agreement as if set forth in full herein.
17.12. Entire Agreement This Agreement contains the entire agreement among
----------------
the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement, except all agreements contained in Paragraph F of the Letter of
Intent between the parties dated January 11, 2000.
17.13. Severability. If any provision of this Agreement is held to be
------------
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
17.14. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
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17.15 Jurisdiction. Each of the parties hereby submits to the exclusive
-------------
jurisdiction of the United States District Court for the Northern District of
Texas and of any Texas state court having jurisdiction over the parties and the
matters in controversy for the purposes of all legal proceedings arising out of
or relating to this Agreement or the transactions contemplated hereby.
ARTICLE 18
DEFINITIONS
-----------
18.1 Defined Terms. When used in this Agreement, the following terms
-------------
shall have the following meanings:
"Affiliate" has the meaning set forth in Section 17.2.2.
"Agreement" means this Asset Purchase Agreement.
"Allocation" has the meaning set forth in Section 3.2.
"Assumed Liabilities" has the meaning set forth in Section 2.1.
"BIA" means Broadcast Investments Analysts.
"Broker" shall mean Star Media Group, Inc.
"Buyer" means NextMedia Group, LLC, a Delaware limited liability company.
"Buyer's Disclosure Letter" shall have the meaning set forth in Section
7.4.
"Capital Lease" has the meaning set forth in Section 2.2.8.
"Closing" has the meaning set forth in Section 4.1.
"Closing Date" has the meaning set forth in Section 4.1.
"Code" means the Internal Revenue Code.
"Collateral Agreements" has the meaning set forth in Section 14.4.
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"Communications Act" means the Communications Act of 1934, as amended.
"Contracts" has the meaning set forth in Section 1.1.3.
"Costs" has the meaning set forth in Section 14.2.
"Earnest Money Escrow Agent" means Star Media Group, Inc.
"Earnest Money Escrow Agreement" means the agreement provided for in
Section 14.1, the form of which is attached hereto as Exhibit 14.1.
"Earnest Money Escrow Deposit" means an irrevocable letter of credit in the
amount of Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00).
"Employee Benefit Plans" has the meaning set forth in Section 6.1.15.
"ERISA Group" has the meaning set forth in Section 6.1.15.
"Estimated Cost" has the meaning set forth in Section 10.8.
"Excluded Assets" has the meaning set forth in Section 1.2.
"FCC" means the Federal Communications Commission.
"FCC Applications" has the meaning set forth in Section 5.2.
"FCC Consent" has the meaning set forth in Section 5.1.
"Final Orders" has the meaning set forth in Section 4.1.
"Governmental Entity" means any court, administrative agency or commission
or other governmental authority or instrumentality.
"Holdback Amount" has the meaning set forth in Section 8.9(ii).
"Indemnification Escrow Agent" has the meaning set forth in Section
8.9(ii).
"Indemnification Escrow Agreement" shall mean the agreement provided for in
Section 8.9(ii), the form of which is attached hereto as Exhibit 8.9.
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"Indemnified Claims" has the meaning set forth in Section 8.9.
"Independent Auditor" means Arthur Andersen, L.L.P.
"Intellectual Property" has the meaning set forth in Section 1.1.4.
"Leased Real Estate" has the meaning set forth in Section 1.1.8.
"Liens" has the meaning set forth in Section 6.1.10.
"Material Environmental Problem" has the meaning set forth in Section
10.8(i).
"Owned Real Estate" has the meaning set forth in Section 1.1.7.
"Permitted Liens" has the meaning set forth in Section 6.1.10.
"Purchase Price" means Seventy-Five Million Dollars ($75,000,000.00),
subject to adjustment.
"Real Estate" has the meaning set forth in Section 1.1.8.
"Real Estate Lease" has the meaning set forth in Section 6.1.8(ii).
"Retained Liabilities" has the meaning set forth in Section 2.2.
"Seller" and "Sellers" have the meaning set forth in the preamble of this
Agreement.
"Sellers' Cure Cost" has the meaning set forth in Section 10.9.
"Sellers' Disclosure Letter" shall have the meaning set forth in Section
6.1.2.
"Station" and "Stations" means those radio stations listed in the preamble
to this Agreement.
"Station Assets" has the meaning set forth in Section 1.1.
"Station Licenses" has the meaning set forth in Section 1.1.1.
"Station Management" has the meaning set forth in Section 6.1.13.
"Tangible Personal Property" has the meaning set forth in Section 1.1.2.
"Tax" and "Taxes" have the meaning set forth in Section 6.1.12(vii).
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"Tax Returns" has the meaning set forth in Section 6.1.12(vii).
"TBA Effective Date" means March 1, 2000.
"Time Brokerage Agreement" or "TBA" means that Time Brokerage Agreement
executed as of even date with this Agreement with respect to the Stations the
form of which is attached hereto as Exhibit 10.10.
"Title Objections" has the meaning set forth in Section 10.9.
"Trade Agreements" has the meaning set forth in Section 1.1.3.
"Transferred Employees" has the meaning set forth in Section 10.7.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the date first above written.
Pinnacle Broadcasting Company, Inc.
By______________________________
Edward J. Ferreri
President
WSOY Decatur, Inc.
By______________________________
Edward J. Ferreri
President
Pinnacle Southeast, Inc.
By______________________________
Edward J. Ferreri
President
Pinnacle Myrtle Corp.
By______________________________
Edward J. Ferreri
President
Atlantic Towers, Inc.
By______________________________
Edward J. Ferreri
President
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El Paso and Lubbock, Inc.
By______________________________
Edward J. Ferreri
President
WFXC & WDUR, Inc.
By______________________________
Edward J. Ferreri
President
Pinnacle S.C., Inc.
By______________________________
Edward J. Ferreri
President
NextMedia Group, LLC
By______________________________
Carl Hirsch
Chairman and Managing Member
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<PAGE>
STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of Pinnacle
Broadcasting Company, Inc., a Delaware corporation, and that by authority of the
Corporation he executed the foregoing document on behalf of the Corporation for
the intents and purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of WSOY Decatur,
Inc., a Delaware corporation, and that by authority of the Corporation he
executed the foregoing document on behalf of the Corporation for the intents and
purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
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STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of Pinnacle
Southeast, Inc., a Delaware corporation, and that by authority of the
Corporation he executed the foregoing document on behalf of the Corporation for
the intents and purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of Pinnacle Myrtle
Corp., a Delaware corporation, and that by authority of the Corporation he
executed the foregoing document on behalf of the Corporation for the intents and
purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
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<PAGE>
STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of Atlantic Towers,
Inc., a South Carolina corporation, and that by authority of the Corporation he
executed the foregoing document on behalf of the Corporation for the intents and
purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of El Paso and
Lubbock, Inc., a Delaware corporation, and that by authority of the Corporation
he executed the foregoing document on behalf of the Corporation for the intents
and purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
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STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of WFXC & WDUR,
Inc., a Delaware corporation, and that by authority of the Corporation he
executed the foregoing document on behalf of the Corporation for the intents and
purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Edward J. Ferreri personally
appeared before me and acknowledged that he is the President of Pinnacle S.C.,
Inc., a Delaware corporation, and that by authority of the Corporation he
executed the foregoing document on behalf of the Corporation for the intents and
purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
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STATE OF __________________
COUNTY OF ________________
I, ______________________________, a Notary Public of the State and County
heretofore mentioned, do hereby certify that Carl Hirsch personally appeared
before me and acknowledged that he is the Chairman and Managing Member of
NextMedia Group, LLC, a Delaware limited liability company, and that by
authority of the Company he executed the foregoing document on behalf of the
Company for the intents and purposes therein expressed.
This the _____ day of February, 2000.
__________________________________________
Notary Public
My Commission Expires:
____________________.
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</TEXT>
</DOCUMENT>