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Cumulus - PROGRAM SERVICE AND TIME BROKERAGE AGREEMENT 8-18
PROGRAM SERVICE AND TIME BROKERAGE AGREEMENT
This Program Service and Time Brokerage Agreement ("Agreement") entered into this 18th day of August, 1997, by and between Cumulus Broadcasting, Inc., a Nevada Limited, ("Programmer"), and Tally Radio, LLC, a Florida limited liability company ("Licensee"), licensee of Radio Station WWLD-FM, licensed to Tallahassee, Florida (the "Station").
WHEREAS, Licensee holds licenses from the Federal Communications Commission ("FCC") authorizing it to operate the Station;
WHEREAS, the studio of the Station is located at 109B Ridgeland Road, Tallahassee, Florida ("Studio") and the transmitter facilities of the Station are located at 109B Ridgeland Road, Tallhasssee, Florida ("Transmitter");
WHEREAS, Licensee has available for sale broadcast time on the Station;
WHEREAS, Programmer desires to purchase time on Licensee's Station for the broadcast of programming on the Station and to sell advertising time for inclusion in that programming; and
WHEREAS, Licensee and Programmer have entered into an Asset Purchase Agreement of even date herewith pursuant to which Programmer and Cumulus Licensing Corp., an affiliate of Programmer will purchase from Licensee substantially all of the assets used or useful in the operation of the Station (the "Asset Purchase Agreement").
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties have agreed as follows:
1. Time Sale. Subject to the provisions of this Agreement, Licensee agrees to make the Station's Studio and Transmitter broadcasting facilities, and all other equipment used or useful in the operation of the Station, available to Programmer for broadcast of Programmer's programs on the Station and the Station's subcarriers. The Station time made available to Programmer is described in Exhibit A hereto.
2. Payment. Programmer hereby agrees to pay Licensee compensation for the broadcast of Programmer's programming in the amounts and at the times set forth in Exhibit B hereto.
3. Term. The initial term of this Agreement shall be for a period of two (2) years, beginning on the date above written (the "Effective Date") and ending two years later or on the day of closing of the transactions contemplated by the Asset Purchase Agreement between the parties, whichever is earlier.
4. Programs. Programmer shall furnish the artistic personnel and materials for its programming. Programmer represents and warrants that all of the programming, advertising and promotional material it broadcasts on the Station shall be in accordance with the rules, regulations and policies of the Commission and the Communications of 1934, as amended (the "Act"). All
rights (including without limitation copyrights) to the use and ownership of the programs shall be and remain vested in Programmer at all times.
5. Accounts Receivable and Existing Advertising Commitments. Licensee's accounts receivable for performed advertising contracts shall be identified and valued as the Effective Date. The parties agree that such accounts receivable shall be and remain the sole property of the Licensee. Programmer agrees to use its best efforts to collect such accounts receivable for a period of ninety (90 days) and shall remit all sums collected to Licensee once a month commencing on the fifteenth day after the first month of operation. Any uncollected accounts thereafter shall be returned to Licensee for collection, and Programmer shall be relieved of any additional responsibilities with respect to such accounts. All accounts receivable created after the Effective Date of this Agreement shall be and remain the sole property of Programmer. Programmer shall be responsible for the collection of such accounts receivable created after the Effective Date and shall retain ownership of such accounts upon termination of this Agreement. All prior existing advertising contracts signed by Licensee prior to the Effective Date of this Agreement for commercial time to be aired during time periods to be used by Programmer are identified on Exhibit C hereto and shall be performed by Programmer for the benefit of Programmer.
6. Station's Facilities.
(a) Licensee Responsibility. Licensee shall be responsible for the Station's compliance with all applicable provisions of the Act, the rules, regulations and policies of the FCC and all other applicable laws. Licensee represents that it holds all permits and authorizations necessary for the operation of the Station including all FCC permits and authorizations. Licensee will continue to hold such permits and authorizations throughout the life of this Agreement and to maintain them in full force and effect.
(b) Broadcast Output. Licensee represents that the Station's facilities and equipment comply with all applicable laws and regulations and that, to its knowledge, it is not in material violation of any statute, ordinance, rule, order or decree of any federal, state or local governmental agency, court or authority having jurisdiction over the Licensee which would have an adverse effect on its ability to perform this Agreement. During the term hereof, Licensee agrees to maintain the Transmitter and other transmission facilities and the broadcast output in compliance with the FCC's rules and regulations to allow broadcasting at the maximum authorized power twenty-four (24) hours a day, seven (7) days a week, except for downtime occasioned by routine maintenance, if necessary, not to exceed two (2) hours on Sundays between 12:00 midnight and 6:00 a.m. To the extent practicable, any maintenance work affecting the operation of the Station at full power shall be scheduled upon at least forty-eight (48) hours prior notice with the approval of Programmer, which shall not be unreasonably withheld.
7. Handling of Mail and Complaints. Programmer shall promptly forward to Licensee any mail which it may receive from any agency of government or any correspondence from members of the public relating to the Station or to any of Programmer's programming broadcast on the Station.
Licensee shall advise Programmer of any public or FCC complaint or inquiry concerning the programs provided by Programmer.
8. Programming and Operations Standards. Programmer recognizes that the Licensee has full authority and a duty to control the operation of the Station. The parties agree that Licensee's authority includes, but it is not limited to, the right to reject or refuse such portions of Programmer's programming which Licensee reasonably believes to be contrary to the public interest. Licensee shall have no obligation to Programmer for the exercise of its rights under this paragraph. Whenever on the Station's premises, Programmer and its employees and agents shall be subject to the supervision and direction of Licensee's General Manager and/or designated personnel.
9. Responsibility for Employees and Expenses. Programmer shall employ and be responsible for the salaries, commissions, taxes, insurance and all other related costs for all of its employees, agents contractors and personnel. Employees of Programmer shall serve, however, as duty operators of the Station, under the supervision and direction of the Licensee's General Manager and/or other designated personnel of Licensee, during all hours the Station are in operation. Licensee shall be responsible for (a) retaining a contract engineer to maintain the Station's broadcast and transmission equipment, (b) appointment of a Chief Operator, and (c) compliance with the FCC's main studio staffing requirements (including, without limitation, the Station's General Manager). Licensee shall be responsible for the salary, taxes, insurance and related costs for its General Manager and Chief Operator.
10. Advertising and Programming Revenues. Programmer shall retain all revenues from the sale of advertising time on the programming it broadcasts on the Station. Programmer will provide, make available to and shall sell time to political candidates from the time it purchases from Licensee in strict compliance with the Act, the rules, regulations and policies and the Commission.
11. Operation of Station.
(a) Full Authority and Power. Licensee shall have full authority and power over the operation of the Station during the term of this Agreement. Licensee and its designated personnel shall have complete access to the Station's Studio at all times. Licensee's General Manager shall direct the day-to-day operation of the Station and report to and be accountable solely to Licensee. Licensee's Chief Operator shall oversee and direct the engineering and technical operation of the Station. Licensee shall retain the right to interrupt and discontinue Programmer's programming at any time if Licensee determines the programming is not in the public interest or violates this Agreement, or in case of an emergency or EBS system activation, or for the purpose of providing programming which Licensee in its sole discretion determines to be of greater national, regional or local importance. Programmer will properly prepare and provide Licensee such information, records and reports belonging to Programmer's programming, sales or employment practices at the Station in sufficient detail as is necessary to enable Licensee to comply with all the rules and policies of the FCC or any other governmental agency.
(b) Political Time. Licensee shall oversee and take ultimate responsibility with
respect to the provision of equal opportunities, lowest unit charge, and reasonable access to political candidates, and compliance with the political broadcast rules of the FCC. Programmer shall cooperate with Licensee as Licensee complies with its political broadcast responsibilities, and shall supply such information promptly to Licensee as may be necessary to comply with the political time record keeping and lowest unit charge requirements of federal law. To the extent that Licensee believes necessary, in Licensee's sole discretion, Programmer shall release advertising availabilities to Licensee during the term of this Agreement to permit Licensee to comply with the political broadcast rules of the FCC and the Communications Laws; provided however, that revenues received by Licensee as a result of any such release of advertising time shall promptly be remitted to Programmer.
(c) Facilities. During the terms of this Agreement the Licensee shall make available to Programmer, for no additional consideration, areas in the Station's physical Studio and offices as are reasonably necessary for Programmer to excise its rights and perform its obligations under this Agreement.
12. Call Signs and Station Identification. Licensee will retain all rights to the call letters "WWLD-FM" or any other call letters that may be assigned by the FCC for use by the Station, and shall be responsible for ensuring the proper broadcast of Station identification announcements in accordance with the FCC rules and regulations. Programmer is specifically authorized to use the call letters "WWLD-FM", or any other call letters used by Licensee for the Station, and will provide appropriate station identification announcements which, in Licensee's sole discretion, comply with FCC requirements.
13. Payola/Plugola. Programmer agrees that neither it nor its employees will accept any consideration, compensation or gift of any kind whatsoever, regardless of its value or form, including, but not limited to, a commission, discount, bonus, supplies or other merchandise (collectively "Consideration"), unless the payer is identified in the program for which Consideration was provided as having paid for or furnished such Consideration, in accordance with the Act.
14. Compliance with Law. Programmer agrees that, throughout the term of this Agreement, Programmer will comply with all laws, regulations and policies including, but not limited to, the FCC's technical, political broadcasting, obscenity and indecency regulations, lottery regulations, sponsorship identification rules, sale practices regulations and all FCC rules applicable to programming agreements of this kind. Programmer acknowledges that Licensee has not urged, advised or agreed in any way to the use of any unfair business practices.
15. Indemnification.
(a) Programmer's Indemnification. Programmer shall indemnify and hold Licensee harmless for any material loss, damage or injury of any kind sustained by Licensee resulting from Programmer's breach of this Agreement, from any programming material broadcast by Programmer on the Station, from the sale of or attempt by Programmer to sell advertising or program time on the
Station, and from any material act or omission of any kind by Programmer.
(b) Licensee's Indemnification. Licensee shall indemnify and hold Programmer harmless for any material loss, damage or injury sustained by Programmer resulting from breach of this Agreement, from the broadcast of Licensee's programming, from the sale of or attempt by Licensee to sell advertising or program time on the Station (except the instant sale provided for in this Agreement to Programmer), and from any material act or omission of any kind whatsoever by Licensee.
(c) Survival. Any claim for indemnification must be asserted in writing delivered to the other party. The representations and obligations of both parties shall survive any termination of this Agreement and shall continue until the expiration of all applicable statutes of limitations as to the parties hereto and to claims of third parties.
16. Termination and Remedies Upon Default.
(a) Termination. In addition to other remedies available at law or equity, this Agreement may be terminated by either party by written notice to the other if the party seeking to terminate is not then in material default or breach thereof, upon the occurrence of any of the following:
(i) This Agreement is declared invalid or illegal in whole or in material part upon a final order of the FCC or any administrative agency or court of competent jurisdiction.
(ii) The other party is in material breach of its obligations hereunder and has failed to cure such breach within TWENTY (20) days of receipt of written notice from the nonbreaching party.
(iii) The mutual consent of both parties.
(iv) The other party shall make a general assignment for the benefit of creditors, files or has filed against a petition for bankruptcy, reorganization or appointment of a receiver or a trustee for the property or assets of such party under any federal or state insolvency law, which is filed against such party has not been dismissed within THIRTY (30) days thereof.
(v) Not less than SIXTY (60) days prior written notice to the other party for any reason.
Upon termination of this Agreement according to the provisions of this paragraph, the monthly payment pursuant to Paragraph 2 above shall be prorated. Licensee shall cooperate reasonably with the Programmer to the extent permitted to enable Programmer to fulfill prior to the date of termination of this Agreement advertising or other programming contacts then outstanding, provided however, to the extent such contracts are fulfilled by Licensee after the date of termination of this Agreement, Licensee shall receive as compensation that which otherwise would have been paid to Programmer pursuant to such contracts.
(b) Programmer's Additional Remedies for Licensee's Technical Operation Deficiencies. In addition to Programmer's right to termite for reasons set forth in Paragraph (a)
above, if the Station suffers any damage to its transmission facilities which results in the inability of the Station to operate with its presently authorized facilities and Licensee has not restored full-time operation of the Station with its presently authorized facilities within SEVEN (7) days of any such occurrence, (i) Programmer may give notice to Licensee of Programmer's termination of this Agreement in which event this Agreement shall terminate upon giving of such notice, any other provision of this Agreement notwithstanding, and (ii) any payment due Licensee pursuant to Paragraph 2 above shall be prorated for such period of time within which full-time operation of the Station has not been restored.
(c) Termination Upon Sale. Notwithstanding anything herein to the contrary, this Agreement shall terminate upon the Closing of the transactions contemplated by the Asset Purchase Agreement.
17. Certification. Pursuant to Section 73.3555(a)(2)(ii) of the FCC's Rules, the following certifications are made: Tally Radio, LLC certifies that it shall maintain ultimate control over the Station's facilities, including specifically control over Station finances, personnel and programming. Programmer certifies that implementation of this Agreement complies with Section 202 of the Telecommunications Act of 1996.
18. Notices. All necessary notices, demands, requests permitted or required under this Agreement shall be in writing and shall be deemed given FOUR (4) days after being mailed by certified mail, return receipt requested, addressed as follows:
If to Licensee:
Tally Radio, LLC
3113 Clint Moore Road
Apt. 206
Boca Raton, Florida 33496
Attn: Gisela Huberman
If to Programmer:
Cumulus Broadcasting, Inc.
c/o Quaestus Management Corporation
330 E. Kilbourn Ave., Ste 250
Milwaukee, WI 53202
Attn: Terrence J. Leahy
Copy to:
Cumulus Broadcasting, Inc.
875 N. Michigan Avenue
Chicago, IL 60611
Attn: Richard J. Bonick
Baker & Daniels
205 W. Jefferson Boulevard
Suite 250
South Bend, IN 46601
Attn: Peter G. Trybula
(Neither of which copies shall constitute notice to Buyer)
19. Modification and Waiver. No modification of any provision of this Agreement shall in any event be effective unless it is in writing, and such modification shall be effective only in the specific instance as for the purpose for which given.
20. Construction. This Agreement shall be construed in accordance with the laws of Florida, and the obligations of the parties hereto are subject to all federal, state and local laws and regulations now or hereafter in force and to the rules, regulations and policies of the FCC and all other governmental entities or authorities.
21. No Partnership or Joint Venture Created. Nothing In this Agreement shall be construed or interpreted to make licensee and Programmer partners or joint venturers, or to make one an agent or representative of the other.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the date first above written.
PROGRAMMER:
CUMULUS BROADCASTING, INC.
By:
-------------------------
LICENSEE:
TALLY RADIO, LLC
By:
-------------------------
Gisela B. Huberman
EXHIBIT A
Subject to all other provisions of this Agreement, Programmer will have the exclusive right to broadcast on the Station and the Station subcarriers up to TWENTY-FOUR (24) hours of programming each day during the term of this Agreement, provided however, Licensee reserves THREE (3) hours of Station time for its own use on Sunday morning, between 7:00 a.m. and 11:00 am. Licensee shall have the sole responsibility to decide the scheduling of such Sunday hours but shall consult with Programmer as to that schedule.
EXHIBIT B
COMPENSATION PAYMENT SCHEDULE
Programmer shall pay to Licensee Twelve Thousand and 00/100 Dollars ($12,000.00) on the first day of each month. Each such payment shall constitute a monthly installment towards the purchase price of the Station and be deducted from the aggregate purchase price to be paid at closing of the transactions contemplated by the Asset Purchase Agreement. In addition, Programmer will reimburse Licensee for Licensee's expenses of operating the Station. Such reimbursement payments will be made by Programmer within SEVEN (7) days of Programmer's receipt of evidence of such expenses.
EXHIBIT C
PRIOR EXISTING ADVERTISING CONTRACTS
Licensee has attached hereto a list of all advertising contracts signed by Licensee prior to the Effective Date.
ASSET PURCHASE AGREEMENT
This Agreement ("Agreement") is entered into as of August __, 1997, by and between Cumulus Broadcasting, Inc., a Nevada corporation ("Broadcasting"), Cumulus Licensing Corporation ("Licensing"), and The Midwestern Broadcasting Company, an Ohio corporation (the "Seller"). Broadcasting and Licensing are referred to collectively herein as the "Buyers." The Buyers and the Seller are referred to collectively herein as the "Parties." Capitalized terms used in this Agreement are defined in Section 8 hereof.
Subject to the terms and conditions of this Agreement, the Buyers hereby agree to purchase substantially all of the assets (and assume certain of the liabilities) of the Seller that are used or useful in the operation of radio stations WWWM-FM, licensed to Sylvania, Ohio, and WLQR-AM, licensed to Toledo, Ohio (collectively, the "Stations") in return for cash.
Now, therefore, in consideration of the above premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows:
1. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the terms and conditions of this Agreement, Licensing agrees to purchase from the Seller, and the Seller agrees to sell, transfer, convey, and deliver to Licensing, all of the Station Licenses. In addition, Broadcasting agrees to purchase from the Seller, and the Seller agrees to sell, transfer, convey, and deliver to Broadcasting, all of the Acquired Assets other than the Station Licenses. Both such sales shall take place at the Closing for the consideration specified below in this Section 1.
(b) Assumption of Liabilities. On and subject to the terms and conditions of this Agreement, the Buyer agrees to assume and become responsible for all of the Assumed Liabilities at the Closing. The Buyer will not assume or have any responsibility, however, with respect to any other obligation or Liability of the Seller not included within the definition of Assumed Liabilities.
(c) Purchase Price. The Buyers agree to pay to the Seller at the Closing Ten Million Dollars ($10,000,000) (the "Purchase Price") payable as follows:
(i) on the date of this Agreement, the Buyers will deposit with the Escrow Agent the amount of Five Hundred Thousand Dollars ($500,000) (the "Earnest Money Deposit") by delivery of cash payable by wire transfer or delivery of other immediately available funds; and
(ii) on the Closing Date, the Buyers shall pay to the Seller the amount of Nine Million Four Hundred Fifty Thousand Dollars ($9,450,000), less interest earned on the Earnest Money Deposit; and
(iii) on the Closing Date, the Buyer shall pay to the Seller, on behalf of all parties to the Postclosing Agreement, the amount of Fifty Thousand Dollars ($50,000).
The Earnest Money Deposit referenced in this Section l(c) shall be placed in escrow with the Escrow Agent pursuant to an escrow agreement in the form attached hereto as Exhibit A (the "Earnest Money Escrow Agreement"), and shall be deposited by the Escrow Agent with a federally insured financial institution in an interest bearing account. Interest earned on the Earnest Money Deposit shall accrue to the benefit of the Buyer, and, together with the principal amount of the Earnest Money Deposit, shall be payable to the Seller and credited against the Purchase Price on the Closing Date. If this Agreement is terminated without Closing of the transaction contemplated herein, the Earnest Money and all accrued interest shall be paid to the Buyer or the Seller as provided in the Earnest Money Escrow Agreement.
(d) The Closing. The closing of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of the Stations in Toledo, Ohio, commencing at 9:00 am. local time on the date set by the Buyers not earlier than the fifth business day or later than the tenth business day after the FCC approval of the Assignment Application becomes a Final Order, by which date all other conditions to the obligations of the Parties to consummate the transactions contemplated hereby will have been satisfied or waived or such other date as the Parties may mutually determine (the "Closing Date").
(e) Deliveries at the Closing. At the Closing, (i) the Seller will deliver to the Buyers the various certificates, instruments, and documents referred to in Section 5(a) below; (ii) the Buyers will deliver to the Seller the various certificates, instruments, and documents referred to in Section 5(b) below; (iii) the Seller will execute, acknowledge (if appropriate), and deliver to the Buyers (A) assignments (including real property lease assignments and Intellectual Property transfer documents) in the forms attached hereto as Exhibits B-1 through B-2 and (B) such other instruments of sale, transfer, conveyance, and assignment as the Buyers and its counsel reasonably may request; (iv) the Buyers will execute, acknowledge (if appropriate), and deliver to the Seller (A) an assumption in the form attached hereto as Exhibit C and (B) such other instruments of assumption as the Seller and its counsel reasonably may request; and (v) the Buyers will deliver to the Seller the consideration specified in Section 1(c) above.
(f) Postclosing Agreement. On the Closing Date, the Seller shall execute, and shall cause shareholders Lewis W. Dickey, Sr. and Patricia L. Dickey to execute, a Postclosing Agreement with the Buyer including covenants not to compete with the Buyer in the markets served by the Stations and to indemnify the Buyer in the form of Exhibit D attached hereto. A portion of the Purchase Price equal to Fifty Thousand Dollars ($50,000) shall be paid to the Seller by the Buyers on the Closing Date as consideration for the agreements set forth in the Postclosing Agreement.
(g) Allocation. The Parties agree to allocate the Purchase Price (and all other capitalizable costs) among the Acquired Assets for all purposes (including financial accounting and tax purposes) in accordance with the allocation schedule attached hereto as Exhibit E.
2. Representations and Warranties of the Seller. The Seller represents and warrants to the Buyers that the statements contained in this Section 2 are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 2), except as set forth in the lettered and numbered paragraphs contained in the disclosure schedule accompanying this Agreement and initialed by the Parties (the "Disclosure Schedule") corresponding to the lettered and numbered sections of this Section 2.
(a) Organization of the Seller. The Seller is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation. The Seller does not have any Subsidiaries. The owners of the Seller are Lewis W. Dickey, Sr. and Patricia L. Dickey.
(b) Authorization of Transaction. The Seller has full power and authority (including full partnership power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. Without limiting the generality of the foregoing, the Board of Directors of the Seller has duly authorized the execution, delivery, and performance of this Agreement by the Seller. This Agreement constitutes the valid and legally binding obligation of the Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby (including the assignments and assumptions referred to in Section 1 above), will (i) violate any statute, regulation, rule, judgment, order, decree, stipulation, injunction, charge, or other restriction of any government, governmental agency, or court to which any of the Seller is subject or any provision of the charter or bylaws of any of the Seller; or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of indebtedness, Security Interest, or other arrangement to which any of the Seller is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any Security Interest upon any of its assets). Other than with respect to the Assignment Application described in Section 4(b) the Seller does not need to give any notice to, make any filing with, or obtain any Licenses, consent, or approval of any government or governmental agency in order for the Parties to consummate the transactions contemplated by this Agreement (including the assignments and assumptions referred to in Section 1 above).
(d) Title to Acquired Assets. Other than the Security Interests set forth on Section 2(d) of the Disclosure Schedule (which shall be released at or before the Closing) the Seller has good and marketable title to all of the Acquired Assets, free and clear of any Security Interest or restriction on transfer.
(e) Financial Statements. Included in Section 2(e) of the Disclosure Schedule are the following financial statements (collectively the "Financial Statements"): (i) unaudited balance sheets and statements of income, and cash flow as of and for the fiscal years ended December 31, 1993, December 31, 1994, December 31, 1995 and December 31, 1996, for the Seller; and
(ii) unaudited statements of income, as of and for each month during 1995 and 1996 and each month ending May 31 in 1997 for the Seller. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, are correct and complete, and are consistent with the books and records of the Seller (which books and records are correct and complete).
(f) Events Subsequent to January 1, 1997. Since January 1, 1997, except as set forth in Section 2(f) of the Disclosure Schedule, there has not been any adverse change in the assets, Liabilities, business, financial condition, operations, results of operations, or future prospects of the Seller with respect to the operation of the Stations. Without limiting the generality of the foregoing and with respect to the operation of the Stations since that date:
(i) the Seller has not sold, leased, transferred, or assigned any of its material assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
(ii) the Seller has not entered into any contract, lease, sublease, license, or sublicense (or series of related contracts, leases, subleases, licenses, and sublicenses) outside the Ordinary Course of Business;
(iii) no party has accelerated, terminated, modified, or canceled any contract, lease, sublease, license, or sublicense (or series of related contracts, leases, subleases, licenses, and sublicenses) involving more than $5,000 to which the Seller is a party or by which it is bound;
(iv) no Security Interest has been imposed upon any of its assets, tangible or intangible;
(v) the Seller has not made any capital expenditure (or series of related capital expenditures) outside the Ordinary Course of Business;
(vi) the Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of any other person (or series of related capital investments, loans, and acquisitions) outside the Ordinary Course of Business;
(vii) the Seller has not created, incurred, assumed, or guaranteed any indebtedness (including capitalized lease obligations) outside the Ordinary Course of Business;
(viii) the Seller has not delayed or postponed (beyond its normal practice) the payment of accounts payable and other Liabilities;
(ix) the Seller has not canceled, compromised, waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business;
(x) the Seller has not granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(xi) the Seller has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property or any action adversely affecting the FCC Licenses of the Stations;
(xii) the Seller has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business giving rise to any claim or right on its part against the person or on the part of the person against it;
(xiii) the Seller has not entered into any employment contract, consulting contract or severance agreement or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(xiv) the Seller has not granted any increase outside the Ordinary Course of Business in the base compensation of any of its directors, officers, and employees;
(xv) the Seller has not adopted any (A) bonus, (B) profit-sharing, (C) incentive compensation, (D) pension, (E) retirement, (F) medical, hospitalization, life, or other insurance, (G) severance, or (H) other plan, contract, or commitment for any of its directors, officers, and employees, or modified or terminated any existing such plan, contract, or commitment;
(xvi) the Seller has not made any other change in employment terms for any of its directors, officers, and employees;
(xvii) the Seller has not made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(xviii) the Seller has not paid any amount to any third party with respect to any Liability or obligation (including any costs and expenses the Seller has incurred or may incur in connection with this Agreement or any of the transactions contemplated hereby) which would not constitute an Assumed Liability if in existence as of the Closing;
(xix) there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of the Seller;
(xx) the Seller has not altered its credit and collection policies or its accounting policies;
(xxi) the Seller has not materially altered the programming, format or call letters of the Stations, or its promotional and marketing activities;
(xxii) the Seller has not applied to the FCC for any modification of the FCC Licenses or failed to take any action necessary to preserve the FCC Licenses and has operated the Stations in compliance therewith and with all FCC rules and regulations; or
(xxiii) the Seller has not committed to any of the foregoing.
(g) Tax Matters. The Seller has filed all Tax Returns that it was required to file. All such Tax Returns were correct and complete in all respects. All Taxes owed by the Seller (whether or not shown on any Tax Return) have been paid. The Seller has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party. No claim has ever been made by an authority in a jurisdiction where the Seller does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no Security Interests on any of the assets of the Seller that arose in connection with any failure (or alleged failure) to pay any Tax.
(h) Tangible Assets. Section 2(h) of the Disclosure Schedule sets forth a listing of all transmitter and station equipment, vehicles and other tangible personal property used in conducting the operation and business of the Stations. The Seller owns or leases all tangible assets necessary for the conduct of the operation and business of the Stations as presently conducted and as presently proposed to be conducted. Each such tangible asset is free from defects (patent and latent), has been maintained in accordance with normal industry practice, is in good operating condition and repair (subject to normal wear and tear), and is suitable for the purposes for which it presently is used. No such tangible asset is in need of replacement.
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