ASSET SALE AGREEMENT
AGREEMENT made this _____ day of _____ , _____ , between _________________
(hereinafter referred to as "Seller") and _________________ (hereinafter referred to as
"Purchaser" ).
W I T N E S S E T H :
WHEREAS, Seller is the owner and licensee of _________________
( _________________ ), _________________ , ________________
(hereinafter referred to as "the
Station") and owns certain property and assets used in the operation of the _________________ ;
and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the assets relating to
the _________________ , upon the terms and subject to the conditions hereinafter set forth; and
WHEREAS, Seller desires to assign and Purchaser desires to secure assignment of any
and all of the authorizations issued by the Federal Communications Commission
(hereinafter
referred to as "the Commission") for operation of the _________________ ; and
WHEREAS, the authorization issued by the Commission for the operation of the
_________________ may not be assigned without prior consent of the Commission; and
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE OF STATION
1.01 Agreement of Sale and Purchase. Seller agrees to sell, assign, transfer, convey and
deliver to Purchaser, and Purchaser agrees to purchase, accept and receive from Seller the
following assets and business of the _________________ :
(a) The building and improvements located on the realty described in
Exhibit "A" attached hereto, including the transmitting tower, the satellite dish,
the electric sign and all other fixtures located on said realty; and
(b) All of the broadcasting and other equipment, furniture and other
tangible property owned by Seller now being used in the operation of the
_________________ , which property is described in Exhibit "B" attached hereto,
together with replacements thereof or additions thereto made between the date
hereof and the Closing Date, as hereinafter defined in Section 7.01; and
(c)
All authorizations, including licenses and construction permits,
issued by the Federal Communications Commission for the operation of the
_________________ , subject to Commission approval; and
(d)
All accounts receivable which exist on said Closing Date; and
(e)
All contracts and agreements in existence on Closing Date for the
sale of advertising time on the Station’s facilities; and
(f)
All copyrights, and trade and service marks used in the operation
of the station, including but not limited to the mark " _________________ " and
related such marks; and
(g)
All records required by the Commission to be maintained by Seller
that relate to the operation of the _________________ ; provided, however, that as
to any such records not located at the _________________ , Seller will provide
copies thereof, upon request by Purchaser.
1.02
Assets Excluded from Sale . Notwithstanding any provisions of this Agreement to
the contrary, there shall be excluded from this sale the following:
(a) All tangible personal property disposed of or consumed in the
ordinary course of business between the date hereof and the Closing Dat e; and
(b) All leases, contracts and other agreements that are terminated or
have expired prior to the Closing Date in the ordinary course of business; an d
(c) Cash on hand or in banks; and
(d)
Employees' loans and advances; and
(e)
Insurance contracts and policies; and
(f) Any and all claims by Seller (other than accounts receivable
existing on Closing Date) with respect to transactions prior to the Closing Date,
including, without limitation, tax refunds; an d
(g) Subject to the provisions of Section 1.01(g) and Section
4.03, all
books of account and business records relating to the operation of the
_________________ ; and
(h) The realty described in Exhibit "A" attached hereto.
1.03 Consideration for Sale . In consideration for the sale, assignment, transfer,
conveyance and delivery of the foregoing assets to Purchaser, Purchaser agrees that it will, in the
manner hereinafter provided in Section 1.04, pay to Seller a total purchase price of:
_________________
1.04
Payment of Purchase Price . The purchase price shall be paid by Purchaser to
Seller in the following manner:
(a) _________________
Earnest Money
(hereinafter referred to as
"Earnest Money") payable in cash by check to Seller by Purchaser at the
execution of this Agreement. The Earnest Money will be deposited into an
interest bearing escrow account to be held by _________________ At Closing,
the amount deposited in escrow shall be delivered to Seller as part of the cash
amount referred to in
(b) below, and all interest accruing on such escrow money
to Closing Date shall be paid to Purchaser. The Earnest Money will be returned to
Purchaser in the event of any breach by Seller of this Agreement or failure of
Commission to consent to this sale as hereafter provided. Seller shall be entitled
to such escrow funds as liquidated damages if Purchaser shall fail or refuse to
close this Agreement in breach thereof and in accordance with the terms hereof;
and
(b) Upon Federal Communications Commission approval, Purchaser
will execute and deliver to Seller at Closing the sum of _________________
(which amount includes the earnest money described above) and its negotiable
Promissory Note in the principal amount of _________________ payable in two
annual installments of _________________ , said installments to be payable on
the anniversary dates of said Note, and said Note is to bear no interest; and
(c) Purchaser will execute and deliver to Seller at Closing its
negotiable Promissory Note in the principal amount of _________________ ,
which principal amount shall bear interest at the rate of ____ Percent ( __ %) per
annum, and the principal and interest of which shall be payable in ___
consecutive monthly installments of _________________ The initial payment
under said Note shall be due on the first day of the third calendar month following
the Closing Date and shall thereafter be payable on the first day of each
succeeding month. Said initial payment shall not begin to accrue interest until the
first day of the second calendar month following the Closing Date. Said Note
shall provide that it may be prepaid in part or in full without penalty. Said Note
shall further provide that it may be assumed without penalty. Said Note shall also
provide that in the event of default, the entire outstanding balance may be
declared due and payable at the option of the holder of said Note, provided that
said Note shall not be considered in default until five workdays after receipt of
notice of nonpayment by Maker, which shall be given by certified mail; an d
(d) As collateral for the above Promissory Notes, Seller will require
that Purchaser execute a Security Agreement granting to Seller a security interest
in the assets to be transferred, including all tangible and intangible property
transferred hereunder, with the exception of the authorizations issued by the
Commission. In said Security Agreement, Purchaser shall agree that in the event
of any default in said Notes or said Security Agreement, and if said default is not
cured within thirty (30) days of notice thereto to Purchaser from Seller, Purchaser
shall promptly cooperate in the filing of all necessary applications with the
Commission for the assignment of all authorizations and licenses from the
Commission for operation of the Station as expeditiously as possible, but in no
event later than ninety (90) days from such default (said assignment to be subject
to the Commission's approval). _________________ personally and
unconditionally guarantee payment of said Notes. Purchaser agrees to carry
sufficient insurance on said assets and property until the Notes are paid in full .
1.05 Lease of Realty Described in Exhibit "A ." Seller agrees to lease unto Purchaser
exclusively the realty described in Exhibit "A" ("Leased Premises") pursuant to the following
terms:
(a) Said Lease shall be for a period of __ ( __ ) years beginning on the
Closing Date and ending at midnight ___ ( __ ) years after said Closing Date,
unless sooner terminated as provided for in said Lease. Purchaser shall have the
option to extend said term for up to ______ ( __ ) months upon thirty (30) days'
written notice to Seller, prior to the expiration of said ___ -year term, to extend the
said term for a period of up to ______ ( __ ) month s.
(b) The annual rent of the leased premises shall be
_________________ payable at the rate of _________________ per month on the
date(s) specified in said Lease. The rent for any extension shall be
_________________ of the then appraised value of the realty (not including
improvements) with said rental to be paid each month as provided in said Leas e.
(c)
Seller shall pay all ad valorem taxes on said realty during the initial
term of said Lease or any extension thereof. Notwithstanding the foregoing, and
any provision herein to the contrary, Purchaser shall pay to Seller, as additional
rent, on an annual basis, any increase in ad valorem taxes caused by
improvements to the leased premises made by, or at the direction of, Purchaser.
Purchaser shall pay all personal property taxes regarding personal property owned
or leased by Purchaser and located on leased premises.
(d) Purchaser shall procure and pay for liability and hazard insurance in
an amount and with such companies as are acceptable to Seller throughout the
term and any extension of said Lease. All policies of insurance shall name
Purchaser and Seller as the insureds, as their respective interests may appear .
(e) Purchaser shall pay for all upkeep, maintenance and repairs of the
Leased Premises.
(f) Seller may cancel said Lease, upon ten (10) days' written notice to
Purchaser, if any default by Purchaser thereunder is not cured within thirty
(30)
days' following receipt of written notice of such default by Purchaser. The failure
of Purchaser to cure a default in the payment of either of the aforementioned
Notes within thirty
(30) days of such default in payment shall constitute a default
under said Lease.
(g) Seller shall grant to Purchaser an option to purchase said Leased
Premises for _________________ , which option may be exercised at any time
during the ten-year term of said Lease by notice to Seller in writing. If Purchaser
shall not have given such notice prior to the end of said ____ ( __ ) year term, said
option shall terminate and be of no further force or effect. Upon exercise of said
option, the sale of said Leased Premises shall be closed at Purchaser's offices in
_________________ , ___________ ; within twelve (12) months from the time
said option is exercised. Seller shall convey said property to Purchaser by
Warranty Deed subject only to applicable zoning ordinances, building restrictions,
restrictive covenants, rights of way, easements and mineral reservations
applicable to said real estate. if said option is exercised as aforesaid, one-half
(1/2) of all rental paid by Purchaser to Seller shall be applied to the purchase
price; provided, however, if said Lease is terminated as a result of a default by
Purchaser, or if this option is not exercised as provided herein and in said Lease,
and therefore expires, such rent shall not be applied to any purchase price of said
Premises and shall not be refunded to Purchaser in any manner .
(h) Purchaser may assign or sublet all or any part of the Premises, but
Purchaser shall remain fully liable for all obligations thereunder.
1.06 Liens of Small Business Administration . Said property described in Exhibits "A"
and "B" is subject to a Deed of Trust and Security Agreement in favor of the Small Business
Administration ("SBA") which Deed of Trust and Security Agreement secure a loan to Seller in
the original amount of _________________ A copy of said Deed of Trust is attached hereto as
Exhibit "C" and made a part hereof. Seller covenants that the indebtedness secured by said Deed
of Trust shall be paid in full within _____ ( __ ) years from Closing Date, and Seller shall not
default in the terms of said Deed of Trust or the Note secured thereby. Seller shall promptly
provide Purchaser with a copy of the receipt the Seller receives each month from the SBA for
payments of said loan. If Seller shall be delinquent in any payments required by said Note or the
Deed of Trust or Security Agreement securing said Note, Purchaser may make the said
delinquent payments and deduct same from any indebtedness due to Seller by Purchaser,
including the rentals due under said Lease or the payments due under any Note from Purchaser to
Seller described herein.
ARTICLE II
SELLER'S COVENANTS. REPRESENTATIONS AND WARRANTIES
Seller covenants, represents and warrants to Purchaser that:
2.01
Standing to Contract . Seller is
(i) a corporation duly organized and existing and
in good standing under the laws of the State of _________________ and
(ii) duly authorized
under its Certifi cate of Incorporation, as amended, to engage in the business carried on by it.
Seller is not in violation of any provisions of its Certificate of Incorporation or in its By-Laws
which would materially affect this transaction.
2.03 Financial Statements .
To the best of Seller's knowledge, the internal operating
statements
(including balance sheets and income statements) of the _________________ which
have been provided to Purchaser fairly and accurately present the financial condition of the
_________________ for the periods reflected.
2.04
Contracts . All of the contracts or other obligations to be transferred to Purchaser
pursuant to this Agreement are in full force and effect except as therein stated, and Seller has
performed in all material respects all the obligations imposed upon it to date by any such
contracts or other obligations. Any contracts or other obligations to be assumed by Purchaser to
which Seller is a party have been disclosed to Purchaser . Seller has no contract of employment
with any employee of Station, except contracts that are cancellable or terminable by Seller on
thirty (30) days' notice or less.
2.05 Title to Property . Exhibit "B" hereto describes all of the tangible personal
property owned or used by Seller in the operation of the Station, whether located at the
transmitter, the studio or elsewhere. Seller has, and will convey good and marketable title to the
building and improvements located on the realty described in Exhibit "A" and to all of the
property listed on Exhibit "B," free and clear of all liens and encumbrances with the exception of
the liens and encumbrances of the SBA in the real estate described in Exhibit "A" and in the
personal property and fixtures described in the financing statement, a copy of which is attached
hereto as Exhibit "D."
2.06
Authorization . Seller is the holder of the licenses and authorizations required to
operate said _________________ . To the best of Seller's knowledge, the _________________ is
being operated in accordance with the rules and regulations of the Commission, and will be so
operated as of the Closing Date. There are not now, and will not be on the Closing Date
hereunder, any unsatisfied citations issued by the Federal Communications Commission
outstanding with respect to the _________________ or its operation.
2.07
Litigation and Claims . There is no litigation, proceeding or investigation pending,
or to the knowledge of Seller, threatened against Seller, that would materially affect the assets or
operations of the _________________ , or its right to dispose of same, nor does Seller know or
have any reasonable ground to know of any basis for such litigation, proceeding or investigation.
To the best of Seller's knowledge, Seller is not in default with respect to any judgment, order,
writ, injunction, decree, rule or regulation of any applicable court or administrative agency which
could have a material adverse effect on the operations or assets of the _________________ .
2.08 Seller's Tax Returns . Seller has filed all necessary federal, state and local tax
returns relating to the assets or operation of the Station, and has paid all such taxes owed by it.
2.09 Insurance . Seller shall keep all of the property owned by it which is the subject of
this Agreement insured under fire and extended coverage insurance, at the same level to which
such property is currently insured. In addition, Seller agrees to hold harmless and fully and
completely indemnify the Purchaser, its successors and assigns, against all loss, damage,
liability, expense, or costs, by reasons or on account of any suit, or cause of action, arising by
reason of Seller's operation of the _________________ , prior to the Closing Date.
2.10 Advertising Contracts . Seller will, by the Closing Date, have provided all radio
time or advertising over the _________________ for which it shall have received prepayment or
for which it shall have accepted, or agreed to accept, consideration other than mone y.
2.11 Asset Indebtedness . Seller represents that there is, or that there will be at the time
of Closing, no indebtedness or encumbrances of any kind on any of its assets to be transferred
hereunder other than the indebtedness to, and the encumbrances of, the SBA as described in
Sections 1.06 and 2.05 above.
2.12 Best Efforts . Seller agrees to diligently pursue and use its best efforts to keep the
Station on the air, to make sales of advertising time on _________________ and to operate the
_________________ in the normal course during the period following execution of this
Agreement and up to and including Closing.
ARTICLE III
PURCHASER'S COVENANTS. REPRESENTATIONS AND WARRANTIES
Purchaser covenants, represents and warrants to Seller that:
3.01 Standing-to Contract . Purchaser is or will be as of the date of Closing
(i) a
corporation organized and existing and in good standing under the laws of the State of
Mississippi, and (ii) duly authorized under its Certificate of Incorporation, as amended, to engage
in the business carried on by it. Purchaser is not in violation of any provisions of its Certificate
of Incorporation or in its By-Laws affecting this transaction.
3.02 Authorization of Agreement . The execution, delivery and performance of this
Agreement by Purchaser will have been duly authorized by all necessary corporate actions on its
part. Neither the execution of this Agreement by Purchaser nor the performance of its obligations
hereunder will conflict with or constitute a default under the Purchaser's Certificate of
Incorporation, its By-Laws, or any other agreement or commitment that is binding upon
Purchaser.
3.03
Absence of Knowledge as to Certain Facts . The Purchaser does not know of any
fact nor have reasonable cause to know of any fact that will disqualify Purchaser from securing
the Commission's consent hereinafter provided for in this Agreement or from completing the
transaction contemplated herein.
ARTICLE IV
OPERATIONS PENDING CLOSING
4.01
Negative Covenants . During the period from the date hereof to the Closing Date,
except where Purchaser has given prior consent thereto in writing, Seller shall not:
(a) Except in the ordinary and normal course of business, (i) enter into
any contracts or agreements concerning the _________________ , or (ii) cancel or
modify or in any way impair any of the contracts or other agreements now in
effect.
(b) Sell or agree to sell or otherwise dispose of or permit the
disposition of any of the tangible personal property included in the assets to be
sold and assigned hereunder.
4.02 Affirmative Covenants . During the period from the date hereof to the Closing
Date, Seller shall have complete control of the _________________ and its related operations,
and Seller agrees that during such period it shall:
(a) Continue the operation of the _________________ in good faith
and in the ordinary and normal course.
(b) Cause its books and records to be maintained in accordance with
sound accounting principles applied consistently with previous periods in such a
manner as to present fairly the history of its operations and financial condition.
(c) Operate in accordance with the terms of its license and all
applicable rules and regulations of the Commission .
4.03
Access to Information . Between the date hereof and the Closing Date, and so long
as is reasonable and necessary thereafter, Seller agrees that it:
(a) Will give to Purchaser during normal business hours reasonable
access to the Station's properties, contracts, books and records, and will cooperate
with Purchaser in preparing a full and complete inventory of the
_________________ tangible personal property; and
(b) Will furnish to Purchaser all such information concerning the
affairs of the _________________ as Purchaser may reasonably request in order
to make such inventory, examinations and investigations thereof as shall be
necessary; provided, however that the rights of Purchaser under this Section 4.03
shall not be exercised in such manner as to give Purchaser any control whatsoever
over the _________________ nor interfere unreasonably with Seller's operations,
nor require any material expenditure of funds by Seller. Purchaser covenants to
keep such information confidential prior to Closing, except such information as
must be disclosed by law.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
The performance of the obligations of Purchaser hereunder is subject, at the election of
Purchaser, to the following conditions precedent:
5.01 Representations and Warranties .
Each of Seller's representations and warranties
contained in this Agreement or in any certificate or document delivered pursuant to the
provisions hereof, or in connection with the transactions contemplated hereby, shall be true in all
material respects at and as of the Closing Date, as though each such representation or warranty
was made at and as of such time, except in respect of such changes as are contemplated or
permitted by this Agreement.
5.02
Compliance with Covenants and Agreements . Seller shall have substantially
performed and complied with all covenants, agreements and obligations required by this
Agreement to be performed or complied with by it prior to or at the Closing Date. Seller shall
have taken all corporate action necessary to validate this transaction.
5.03
FCC Authorization . On the Closing Date, Seller shall be the holder of licenses for
the operation of the _________________ , and there shall not have been any material
modification of the terms thereof adversely affecting Purchaser .
5.04 Violation of Ordinances .
On the Closing Date Seller shall not have received any
notice of, and shall not have any knowledge of, any violation of any governmental authority
pertaining to the studio or transmitter site occupied by the _________________ which would
materially interfere with or adversely affect its business operations.
5.05 Contracts . To the extent that the contracts, agreements or other obligations
assumed by Purchaser pursuant to this Agreement require the consent of the other party or
parties thereto to the assignment to Purchaser, Seller shall have obtained the consents required
for their assignment to Purchaser, without penalty to Purchaser on or prior to the Closing Date.
Approval of the aforementioned Lease and this sale must also have been received from the SBA.
5.06 Consent of the Commission . The Commission shall have given its consent to the
assignment of license contemplated herein as provided in Section 8.03 hereof in accordance with
the terms and conditions of this Agreement.
5.07 Delivery of Closing Documents . Seller shall have delivered or caused to be
delivered to Purchaser on the Closing Date the closing documents required to be delivered
pursuant to Article IX hereof.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The performance of the obligations of Seller hereunder is subject, at the election of
Seller, to the following conditions precedent:
6.01 Purchase Price . All payments hereunder which are due and payable by Purchaser
on or before the Closing Date shall have been paid in accordance with the terms of this
Agreement.
6.02 Representations and Warranties . Each of Purchaser's representations and
warranties contained in this Agreement or in any certificate or document delivered pursuant to
the provisions hereof, or in connection with the transactions contemplated hereby, shall be true in
all material respects at and as of the Closing Date, as though each such representation or
warranty was made at and as of such time, except in respect of such changes as are contemplated
or permitted by this Agreement.
6.03 Compliance with Covenants and Agreements . Purchaser shall have performed
and complied with all covenants, agreements and obligations required by this Agreement to be
performed or complied with by it prior to or at the Closing Date.
6.04 Delivery of the Commission . The Commission shall have given its consent to the
assignment of license contemplated herein in accordance with the terms and conditions of this
Agreement.
ARTICLE VII
CLOSING
7.01
Closing . The Closing shall take place on a date which shall be within thirty
(30)
days after the Commission's consent to the assignment contemplated herein, the exact date, time
and place of the Closing to be mutually agreed on by Purchaser and Seller. In the event that no
agreement is reached, the Closing will be at the Station at 10:00 a.m. on the 30th day (or the 31st
day if said 30th day falls on a Sunday) following the date the Commission's consent becomes a
final order. The time of Closing, fixed in accordance with the provisions of this Section, is
herein called the "Closing Date." In the event the Closing shall take place within the first fifteen
(15) days of any given month, said Closing and the adjustments and allocations to be made
hereunder shall be effective as of the first (1st) day of said month. In the event the Closing shall
take place after the 15th day of any given month, said Closing and the adjustments and
allocations to be made hereunder shall be effective as of the first
(1st) day of the following
month.
7.02 Adjustments and Allocations . All rights and obligations arising from the
operation of the _________________ on or before the Closing Date shall be for the account of
Seller, and thereafter for the account of Purchaser. Liabilities or prepaid items existing on the
Closing Date, including but not limited to, payments for supplies, advertising, commissions,
Federal, State and local taxes (other than ad valorem taxes), water, electric, telephone and other
utility and service charges, rebates to advertisers, rents, prepaid or deferred time sales or service
agreements, shall be prorated and shall be allocated between Seller and Purchaser on the basis of
the period of time to which such liabilities or prepaid items appl y.
ARTICLE VIII
CONSENT OF COMMISSION AND CONDITIONS
8.01
Application for Commission Consent . Within five (5) days from the date hereof,
Seller and Purchaser shall join in an application to be filed with the Commission requesting its
consent to the assignment of the license to Purchaser as contemplated herein. Each of the parties
hereto shall diligently take or cooperate in the taking of all steps that are necessary or appropriate
to expedite the prosecution and favorable consideration of such application, but at no expense to
Seller .
8.02
Time for Commission Consent . If within six (6) months from the date of filing
the application, (i) the Commission shall have failed or refused to grant the consent referred to in
Section 8.01 hereof, or (ii) although granted, such consent shall not have become a "final order"
of the Commission, as hereinafter defined, then either of the parties hereto may terminate this
Agreement upon ten (10) days written notice to the other, and Purchaser's earnest money shall be
promptly refunded; provided, however, that such notice of termination is given prior to the date
on which such consent shall have become a "final order" as aforesaid; and provided further,
however, that the party giving such notice shall not be in default under provisions of this
Agreement, which default is the basis for the failure or refusal of the Commission to grant such
consent or otherwise prevents such grant from becoming a "final orde r."
8.03 Final Order . For the purpose of this Agreement, a "final order" shall mean action
by the Commission consenting to the assignment 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 appeal is pending, and as to which the time for filing any such request, petition
or appeal has expire d.
ARTICLE IX
CLOSING DOCUMENTS TO PURCHASER
9.01 Closing Documents .
At the Closing, Seller shall deliver to Purchaser the
following documents, satisfactory to counsel for Purchaser and properly executed, unless
Purchaser shall waive in writing such delivery and then only to the extent of such waiver:
(a)
A certificate of Seller's President and Secretary dated the Closing
Date, certifying as to the fulfillment of the conditions specified in sections 5.01,
5.02, 5.03, 5.04, 5.05 and 5.06.
(b) Lease (with option to purchase) in recordable form in and to the
real property described in Exhibit “ A."
(c)
A Bill of Sale transferring to Purchaser good, merchantable and
unencumbered title (except as otherwise indicated herein) in and to the assets to be
transferred and assigned hereunder.
(d)
An instrument assigning to Purchaser all right, title and interest of
Seller in and to all of the contracts, agreements and other intangible assets to be
transferred and assigned hereunder.
(e) An instrument assigning to Purchaser the radio licenses and
authorizations for the _________________ then in effect, to the extent permitted by
the Commission.
(f) Certified copy of resolution of the Board of Directors of Seller
duly authorizing the execution, delivery and performance of this Agreement and all
documents to be executed and delivered by Seller at the Closing and thereafter.
9.02 Additional Documents . At the Closing, Seller shall also deliver to Purchaser
originals or true copies of all of the leases, contracts, agreements and other instruments to be
assigned hereunde r.
ARTICLE X
CLOSING DOCUMENTS TO SELLER
10.01
Closing Documents . At the Closing, Purchaser will pay to Seller the purchase
price, as provided for in Section
1.04, shall deliver to Seller its Promissory Notes, Security
Agreement and UCC Financing Statements, pursuant to Section 1.04 and in forms satisfactory to
counsel for Seller, and shall deliver to Seller the following documents satisfactory to counsel for
Seller, and properly executed unless Seller shall waive in writing such delivery and then only to
the extent of such waiver:
(a) An agreement by Purchaser assuming the obligations and liabilities
of Seller accruing after the Closing Date under all leases, contracts and other
agreements transferred to, assigned to, or assumed by Purchaser hereund er.
(b) Written acknowledgment of the property transferred pursuant to
Seller's Bill of Sale, and receipt of Seller's books and records.
(c) Certified copy of resolution of the Board of Directors of Purchaser
duly authorizing the execution, delivery and performance of this Agreement and
all documents to be executed and delivered by Purchaser at the Closing and
thereafter.
ARTICLE XI
BROKERAGE
11.01
Brokerage Commissions . It is understood and agreed by the parties hereto that
there has been no broker involved in this transaction and that no brokerage fees or commissions
are or shall be due and payable as a result of this sale.
ARTICLE XII
LOSS OR DAMAGE
12.01 Risk of Loss, Restoration and Repair . The risk of loss or damage by fire or other
casualty or cause to the property to be sold hereunder shall, until the time of Closing, be upon
Seller. In the event of such loss or damage prior to the Closing, Seller shall, either promptly at
its own cost repair or replace such property, or if the parties mutually agree, the purchaser price
to be paid by Purchaser hereunder shall be adjusted by an amount equal to the cost of restoring,
replacing or repairing such loss or damage.
12.02
Purchaser's Option to Terminate . In the event that such replacement, restoration
or repair shall not be completed within the time provided by the Commission for Closing or any
extension of time granted by the Commission, or any damage by fire or other casualty occurs
which causes an interruption of broadcasting service, and emergency restoration of such
interrupted service with the Commission's approval cannot be made within thirty (30) days after
the commencement of such interruption of service, then, and in either of such events, Purchaser
may terminate this Agreement by giving written notice to Seller, in which event the obligations
of the parties shall terminate forthwith and the Earnest Money shall be promptly returned to
Purchaser .
ARTICLE XIII
COVENANT NOT TO COMPETE
13.01 Covenant Not to Compete . For a period of ____ ( _ ) years, Seller covenants that it
shall not own or operate, directly or indirectly, any radio or other business which shall compete
with the Station for advertising revenues within the 1 mV/m contour of the _________________ .
Purchaser shall have the right to specific performance of this covenant.
ARTICLE XIV
GENERAL PROVISIONS
14.01
Expenses of the Parties . The appraisal fee of _________________ and the
_________________ filing fee for the Application for Commission consent shall be split equally
between Seller and Purchaser. The fees of _________________ for preparing documents to be
filed with the commission regarding this sale shall be paid for by Purchaser, but Seller shall
reimburse Purchaser for $ _________________ of such fees. Other than the allocations
specifically mentioned herein, each of the parties hereto shall bear all expenses incurred by it in
connection with the consummation of the transactions contemplated hereby and the preparations
therefor. The expense of publication of the local notices required by the Commission in
connection therewith shall be paid by Seller .
14.02
Covenant of Further Assurance . The parties will execute such other documents as
may be reasonably necessary for the implementation and consummation of this Agreement and
for the successful processing by the Commission of the application to be filed with it, as
provided in Section 8. 01.
14.03 Survival of Representations, Warranties and Indemnifications . Neither the
acceptance of payments due nor the acceptance or delivery of property hereunder shall constitute
a wavier of any covenant, representation, warranty, agreement, obligation, undertaking or
indemnification of Seller or Purchaser contained in this Agreement, and the same shall, unless
otherwise specifically provided, survive the Closing Date. Purchaser shall have the right to
inspect the premises of the Station at any time during normal business hours at least ten (10)
days preceding the Closing Date, and will give the Seller written notice of any tangible personal
property to be transferred at the Closing which are missing or defective at such time. Seller shall
replace any missing items or repair any defective items prior to the Closing Dat e.
14.04 Amendment and Waiver . This Agreement cannot be changed or terminated
orally. No wavier of compliance with any provision or condition hereof, and no consent provided
for herein shall be effective unless evidenced by an instrument in writing duly executed by the
party hereto sought to be charged with such waiver or consent.
14.05 Effect of this Agreement . This Agreement sets forth the entire understanding of
the parties and supersedes any and all prior agreements, arrangements and understandings
relating to the subject matter hereof. No representation, promise, inducement or statement of
intention has been made by either party which is not embodied in this Agreement, and neither
party shall be bound by or be liable for, any alleged representation, promise, inducement or
statement or intention not embodied herein .
14.06
Section Headings. The Article and Section headings of this Agreement are for
convenience of reference only and do not form a part thereof and do not in any way modify,
interpret or construe the intentions of the parties.
14.07
Construction . This Agreement shall be construed and enforced in accordance
with the laws of the State of ______________ .
14.08 Notices . Any notice, demand, waiver or consent required or permitted hereunder
shall be in writing and shall be given by prepaid telegram or prepaid registered or certified mail,
with return receipt requested, addressed as follows:
If to Seller: _________________
_________________
_________________
_________________
If to Purchaser: _________________
_________________ .
_________________
_________________
The date of any such notice and of receipt thereof shall be deemed to be the day of dispatch.
Any party may change its address for the purpose of notice by giving notice in accordance with
the provisions of this Section.
14.10 Attorneys' Fees . In the event of litigation arising out of this Agreement, the
prevailing parties shall be entitled to recover, in addition to the relief granted, all costs incurred,
including reasonable attorneys' fees.
14.11
Counterparts . This Agreement may be signed in any number of counterparts with
the same effect as if the signature to each such counterpart were upon the same instrum ent.
14.12 Notwithstanding anything referred to in Section 1.04(d) or Section 10.01 of this
Agreement or any other provision herein to the contrary, no assignment of, or granting of a
security interest in, the FCC License(s) and/or authorization(s) to operate _________________
shall be made or granted to Seller which violates 47 USC §310or any FCC regulation or rule,
including but not limited to Rule 73.1150, and the undersigned do covenant and agree that Rule
73.1150 will be fully complied with in connection with any security interest granted pursuant to
this Agreement .
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
as of the day and year first above written.
_________________
By:
_________________ , President
_________________
By:
_________________ , President
