Federal Communications Commission
Washington, D.C. 20554
Approved by OMB
3060-0075 (April 2017)
FCC 345
FOR FCC USE ONLY
 
APPLICATION FOR TRANSFER OF CONTROL OF A CORPORATE LICENSEE OR PERMITTEE, OR FOR ASSIGNMENT OF LICENSE OR PERMIT OF TV OR FM TRANSLATOR STATION OR LOW POWER TELEVISION STATION

Read INSTRUCTIONS Before Filling Out Form

FOR COMMISSION USE ONLY
FILE NO.

BALTTA - 20040915AEH
Section I - General Information
1. Legal Name of the Licensee/Permittee
TIGER EYE BROADCASTING CORP.
Mailing Address
3400 LAKESIDE DRIVE SUITE 500

City
MIRAMAR
State or Country (if foreign address)
FL
ZIP Code
33027 -
Telephone Number (include area code)
9544313144
E-Mail Address (if available) 
JGALLAGHER@TIGEREYE.TV
FCC Registration Number:
0006351738
Call Sign 
WHOA-LP
Facility Identifier
41095
2. Contact Representative (if other than Licensee/Permittee)
TIGER EYE BROADCASTING CORP.
Firm or Company Name

Mailing Address


City
State or Country (if foreign address)
ZIP Code
-
Telephone Number (include area code)
9544313144
E-Mail Address (if available)
JGALLAGHER@TIGEREYE.TV
3. If this application has been submitted without a fee, indicate reason for fee exemption (see 47 C.F.R. Section 1.1114):
Governmental Entity Noncommercial Educational Licensee/Permittee Other AMENDMENT TO PENDING APPLICATION
N/A (Fee Required)
4.
Were any of the authorizations that are the subject of this application obtained through the Commission's competitive bidding procedures (see 47 C.F.R. Sections 1.2111(a) and 73.5001)?

If Yes, list pertinent authorizations in an Exhibit.
Yes No

[Exhibit 1]



NOTE: In addition to the information called for in this section, an explanatory exhibit providing full particulars must be submitted for each question for which a "No" response is provided.

Section II - Assignor/Transferor

1.
Certification.  Licensee/permittee certifies that it has answered each question in this application based on its review of the application instructions and worksheets. Licensee further certifies that where it has made an affirmative certification below, this certification constitutes its representation that the application satisfies each of the pertinent standards and criteria set forth in the application instructions and worksheets.
Yes No
2.
Application for (check only one box for A and B):
A. Consent to Assignment of Construction Permit Consent to Transfer Control of Permittee
Consent to Assignment of License Consent to Transfer Control of Licensee
Amendment to pending application

If an amendment, submit as an Exhibit a listing by Section and Question Number of the portions of the pending application that are being revised.
[Exhibit 2]
B. TV Translator Low Power TV Station FM Translator Digital Low Power TV   Digital TV Translator
3.

Legal Name of the Assignor/Transferor
TIGER EYE BROADCASTING CORPORATION

Mailing Address
3400 LAKESIDE DRIVE SUITE 500

City
MIRAMAR
State or Country (if foreign address)
FL
Zip Code
33027 -
Telephone Number
(include area code)
9544313144
E-Mail Address (if available)

 
If more than one transferor, submit the information requested in question 1 for each transferor.
[Exhibit 3]
4.

Contact Representative (if other than assignee)

Firm or Company Name

Mailing Address


City
State or Country (if foreign address)
Zip Code
-
Telephone Number
(include area code)
E-Mail Address (if available)

5. Authorizations to be Assigned/Transferred. List call signs, locations and facility identifiers of all authorizations to be assigned/transferred. Include construction permits and file numbers. List main station authorizations and any FM and/or TV translator stations, LPTV stations, SCA, FM and/or TV booster stations, and associated auxiliary service stations.

[Enter Station Information]


List the authorized stations and construction permits to be assigned/transferred. Provide the Facility Identification Number and the Call Sign, or the Facility Identification Number and the File Number of the Construction Permit, and the location, for each station to be assigned/transferred. Include main stations, FM and/or TV translator stations, LPTV stations, FM and/or TV booster stations.

Facility ID Number Call Sign or Construction Permit File Number City State

41095

WHOA-LP

-

RALEIGH

NC


6.
Agreements for Sale/Transfer of Station. Licensee/permittee certifies that:
a. it has placed in its station records and submitted to the Commission as an Exhibit to this application copies of all agreements for the sale/transfer of the station(s);
b. these documents embody the complete and final understanding between licensee/permittee and assignee/transferee; and
c. these agreements comply fully with the Commission's rules and policies.
Yes No

See Explanation in
[Exhibit 4]

7.
Character Issues. Licensee/permittee certifies that neither licensee/permittee nor any party to the application has or has had any interest in or connection with:
a. any broadcast application in any proceeding where character issues were left unresolved or were resolved adversely against the applicant or party to the a application; or
b.
any pending broadcast application in which character issues have been raised.
Yes No

See Explanation in
[Exhibit 5]

8.
Adverse Findings. Licensee/permittee certifies that, with respect to the licensee/permittee and any party to the application, no adverse finding has been made, nor has an adverse final action been taken by any court or administrative body in a civil or criminal proceeding brought under the provisions of any law related to the following: any felony; mass media-related antitrust or unfair competition; fraudulent statements to another government unit; or discrimination.
Yes No

See Explanation in
[Exhibit 6]

9.
Local Public Notice. Licensee/permittee certifies that it has or will comply with the public notice requirements of 47 C.F.R. Section 73.3580.
Yes No
10.
Auction Authorization. Licensee/permittee certifies that more than five years have passed since the issuance of the construction permit for the station being assigned/transferred, where that permit was acquired in an auction through the use of a bidding credit or other special measure.
Yes No
N/A

See Explanation in
[Exhibit 7]

11.
Anti-Drug Abuse Act Certification. Licensee/permittee certifies that neither licensee/permittee nor any party to the application is subject to denial of federal benefits pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, 21 U.S.C. Section 862.
Yes No
12.
Anti-Discrimination Certification. Licensee/permittee certifies that neither licensee/permittee nor any party to the application have violated the Commission's prohibition against discrimination on the basis of race, color, religion, national origin or sex in the sale of commercially operated FM translator, TV translator, or low power television stations.
Yes No

N/A

See Explanation in
[Exhibit 8]

I certify that the statements in this application are true, complete, and correct to the best of my knowledge and belief, and are made in good faith. I acknowledge that all certifications and attached Exhibits are considered material representations.

Typed or Printed Name of Person Signing
JOHN N. KYLE II


Typed or Printed Title of Person Signing
PRESIDENT
Signature
Date
09/15/2004

WILLFUL FALSE STATEMENTS ON THIS FORM ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. CODE, TITLE 18, SECTION 1001), AND/OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. CODE, TITLE 47, SECTION 312(a)(1)), AND/OR FORFEITURE (U.S. CODE, TITLE 47, SECTION 503).



NOTE: In addition to the information called for in this section, an explanatory exhibit providing full particulars must be submitted for each question for which a "No" response is provided.

Section III - Assignee/Transferee

1.
Certification. Assignee/transferee certifies that it has answered each question in this application based on its review of the application instructions and worksheets. Assignee/transferee further certifies that where it has made an affirmative certification below, this certification constitutes its representation that the application satisfies each of the pertinent standards and criteria set forth in the application instructions and worksheets.
Yes No
2.
Legal Name of the Assignee/Transferee
ZGS RALEIGH INC.
Mailing Address
2000 NORTH 14TH STREET
SUITE 400

City
ARLINGTON
State or Country (if foreign address)
VA
Zip Code
22201 -
Telephone Number (include area code)
7036226161
E-Mail Address (if available)

If more than one transferee, submit the information requested in question 1 for each transferor.
[Exhibit 9]
3.
Contact Representative (if other than assignee)
BRYAN MCGINNIS
Firm or Company Name
SHAW PITTMAN LLP
Mailing Address


City
State or Country (if foreign address)
Zip Code
-
Telephone Number (include area code)
2026638000

E-Mail Address (if available)
BRYAN.MCGINNIS@SHAWPITTMAN.COM
4. Nature of Applicant. Assignee/transferee is:
an individual a general partnership a for-profit corporation
a limited partnership a not-for-profit corporation a limited liability company (LLC/LC)
other    

a. If "other", describe nature of applicant in an Exhibit. [Exhibit 10]
5.
Agreements for Sale/Transfer of Station. Assignee/Transferee certifies that:
a. the written agreements in the licensee/permittee's station records embody the complete and final agreement for the sale of the station(s) which are to be assigned; and these
b. agreements comply fully with the Commission's rules and policies.
Yes No

See Explanation in
[Exhibit 11]

6.
Character Issues. Assignee/Transferee certifies that neither assignee/transferee nor any party to the application has or has had any interest in or connection with:
a. any broadcast application in any proceeding where character issues were left unresolved or were resolved adversely against the applicant or party to the a application; or
b. any pending broadcast application in which character issues have been raised.
Yes No

See Explanation in
[Exhibit 12]

7.
Adverse Findings. Assignee/Transferee certifies that, with respect to the assignee/transferee and any party to the application, no adverse finding has been made, nor has an adverse final action been taken by any court or administrative body in a civil or criminal proceeding brought under the provisions of any law related to any of the following: any felony; mass media-related antitrust or unfair competition; fraudulent statements to another government unit; or discrimination.
Yes No

See Explanation in
[Exhibit 13]

8.
Alien Ownership and Control. Assignee/Transferee certifies that it complies with the provisions of Section 310 of the Communications Act of 1934, as amended, relating to interests of aliens and foreign governments.
Yes No

See Explanation in
[Exhibit 14]

9.
Financial Qualifications. Assignee/Transferee certifies that sufficient net liquid assets are on hand or are available from committed sources to consummate the transaction and operate the station(s) for three months.
Yes No

See Explanation in
[Exhibit 15]

10.
Rebroadcast Certification. For applicants proposing translator rebroadcasts who are not the licensee of the primary station, the applicant certifies that written authority has been obtained from the licensee of the station whose programs are to be retransmitted Yes No
N/A
Primary station proposed to be rebroadcast:
Facility ID Number Call Sign City State
11.
a. Applicant certifies that it is not the licensee or permittee of the commercial primary station being rebroadcast and that neither it nor any parties to the application have any interest in or connection with the commercial primary station being rebroadcast. See 47 C.F.R. Section 74.1232(d).
Yes No
N/A
See Explanation in
[Exhibit 16]

b. Applicant certifies that the FM translator's (a) 1mV/m coverage contour does not extend beyond the protected contour of the commercial FM primary station to be rebroadcast, or (b) entire 1mV/m coverage contour is contained within the greater of either: (i) the 2 mV/m daytime contour of the commercial AM primary station to be rebroadcast, or (ii) a 25-mile radius centered at the commercial AM primary station's transmitter site.
Yes No
N/A

See Explanation in
[Exhibit 17]

NOTE: If No to a. and b., and no waiver has been requested in an Exhibit, this application is unacceptable for filing. See 47 C.F.R. Section 74.1231(d).

If No to a. and Yes to b. applicant is prohibited from receiving any support, before or after construction, either directly or indirectly from the commercial primary station being rebroadcast or from any person or entity having any interest whatsoever, or any connection with the primary FM station. Interested and connected parties include group owners, corporate parents, shareholders, officers, directors, employees, general and limited partners, family members and business associates. See 47 C.F.R. Section 74.1232(e).

12.
Applicant certifies that it is in compliance with 47 C.F.R. Section 74.1232(e), which prohibits a FM translator station whose coverage contour extends beyond the protected contour of the commercial FM primary station being rebroadcast, from receiving support (except for specified technical assistance), before, during, or after construction, directly or indirectly, from the primary station, or any person or entity having any interest in, or connection with, the primary station. Yes No
N/A

See Explanation in
[Exhibit 18]

13.
Auction Authorization. Assignee/Transferee certifies that where less than five years have passed since the issuance of the construction permit and the permit had been acquired in an auction through the use of a bidding credit or other special measure, it would qualify for such credit or other special measure. Yes No
N/A

See Explanation in
[Exhibit 19]

14.
Anti-Drug Abuse Act Certification. Assignee/Transferee certifies that neither assignee nor any party to the application is subject to denial of federal benefits pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, 21 U.S.C. Section 862. Yes No
15.
Equal Employment Opportunity (EEO). If the applicant proposes to employ five or more full-time employees, applicant certifies that it is filing simultaneously with this application a Model EEO Program Report on FCC Form 396-A. Yes No
N/A
I certify that the statements in this application are true, complete, and correct to the best of my knowledge and belief, and are made in good faith. I acknowledge that all certifications and attached Exhibits are considered material representations. I hereby waive any claim to the use of any particular frequency as against the regulatory power of the United States because of the previous use of the same, whether by license or otherwise, and request an authorization in accordance with this application. (See Section 304 of the Communications Act of 1934, as amended.)
Typed or Printed Name of Person Signing
RONALD GORDON
Typed or Printed Title of Person Signing
PRESIDENT
Signature
Date
11/10/2004

WILLFUL FALSE STATEMENTS ON THIS FORM ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. CODE, TITLE 18, SECTION 1001), AND/OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. CODE, TITLE 47, SECTION 312(a)(1)), AND/OR FORFEITURE (U.S. CODE, TITLE 47, SECTION 503).



Exhibits
Exhibit 4
Description:
WHOA TRANSFER AGREEMENT

ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (THIS AGREEMENT) IS ENTERED INTO AS OF SEPTEMBER ___, 2004 (THIS AGREEMENT), BY AND BETWEEN TIGER EYE BROADCASTING CORPORATION, A FLORIDA CORPORATION (SELLER), AND ZGS BROADCASTING HOLDINGS, INC., A DELAWARE CORPORATION (BUYER).
WITNESSETH:
WHEREAS, SELLER OWNS CLASS A TELEVISION STATION WHOA-LP, CHANNEL 44, LICENSED TO RALEIGH, NORTH CAROLINA (THE STATION) PURSUANT TO LICENSES ISSUED BY THE FEDERAL COMMUNICATIONS COMMISSION (THE FCC); AND
WHEREAS, BUYER IS A COMPANY FORMED AS A HOLDING COMPANY FOR VARIOUS WHOLLY-OWNED SUBSIDIARIES THAT OWN AND OPERATE RADIO AND TELEVISION STATIONS;
WHEREAS, SELLER DESIRES TO SELL TO BUYER, AND BUYER DESIRES TO PURCHASE FROM SELLER, SUBSTANTIALLY ALL OF THE ASSETS USED IN CONNECTION WITH THE STATION, ALL ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN, INCLUDING THE PRIOR CONSENT OF THE FCC; AND
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL COVENANTS AND AGREEMENTS HEREINAFTER SET FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1
PURCHASE OF ASSETS
1.1TRANSFER OF ASSETS. ON THE CLOSING DATE (AS HEREINAFTER DEFINED), SUBJECT TO THE CONDITIONS CONTAINED HEREIN, SELLER SHALL SELL, ASSIGN, TRANSFER AND CONVEY TO BUYER, AND BUYER SHALL PURCHASE FROM SELLER, ALL OF THE ASSETS, PROPERTIES, INTERESTS AND RIGHTS OF SELLER OF WHATSOEVER KIND AND NATURE, TANGIBLE AND INTANGIBLE, WHICH ARE USED OR HELD FOR USE IN CONNECTION WITH THE OPERATION OF THE STATION (THE ACQUIRED ASSETS), INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
(A)ALL LICENSES, PERMITS, PENDING APPLICATIONS AND OTHER AUTHORIZATIONS RELATING TO THE STATION ISSUED TO SELLER BY THE FCC OR FILED BY SELLER WITH THE FCC, OR ANY OTHER GOVERNMENTAL AUTHORITY ON OR PRIOR TO THE CLOSING DATE, TOGETHER WITH RENEWALS OR MODIFICATIONS THEREOF, INCLUDING, WITHOUT LIMITATION, THE LICENSES, PERMITS, APPLICATIONS AND AUTHORIZATIONS LISTED ON SCHEDULE 1.1 (A) ATTACHED HERETO (THE AUTHORIZATIONS);
(B)BUYER IS NOT ACQUIRING ANY OWNED REAL PROPERTY OR ASSUMING ANY LEASE FOR REAL PROPERTY HELD BY SELLER, AND ALL EXISTING LEASES FOR REAL PROPERTY HELD BY SELLER WITH RESPECT TO OPERATION OF THE STATION ARE IDENTIFIED AS EXCLUDED LEASES ON SCHEDULE 1.1(B) HEREOF (THE EXCLUDED LEASES); AND
(C)ALL EQUIPMENT, OFFICE FURNITURE AND FIXTURES, OFFICE MATERIALS AND SUPPLIES, INVENTORY AND OTHER TANGIBLE PERSONAL PROPERTY, OF EVERY KIND AND DESCRIPTION, OWNED OR USED BY SELLER WITH RESPECT TO THE STATION ON THE DATE HEREOF, TOGETHER WITH ANY ADDITIONS THERETO OR REPLACEMENTS THEREOF MADE BETWEEN THE DATE HEREOF AND THE CLOSING DATE, AND LESS ANY RETIREMENTS OR DISPOSITIONS THEREOF MADE BETWEEN THE DATE HEREOF AND THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, THE PROPERTY IDENTIFIED ON SCHEDULE 1.1(C) ATTACHED HERETO (COLLECTIVELY, THE 'TANGIBLE PERSONAL PROPERTY'), EXCEPT THOSE SPECIFIC ITEMS OF TANGIBLE PERSONAL PROPERTY SET FORTH ON SCHEDULE 1.1(C) HEREOF;
(D)AT BUYERS SOLE ELECTION, SELLER'S RIGHT, TITLE AND INTEREST IN AND TO SELLERS CONTRACTS, AGREEMENTS AND OPERATING LEASES (BUT EXCLUDING ANY AGREEMENT FOR BORROWED MONEY, INCLUDING ANY MORTGAGE) WRITTEN OR ORAL, RELATING TO THE OPERATION OF THE STATION, AS IDENTIFIED ON SCHEDULE 1.1(D) HERETO, TOGETHER WITH ALL CONTRACTS, AGREEMENTS AND OPERATING LEASES WHICH BUYER AGREES IN WRITING TO ASSUME AT THE CLOSING THAT SELLER ENTERS INTO OR ACQUIRES BETWEEN THE DATE HEREOF AND THE CLOSING DATE (AS HEREINAFTER DEFINED) (COLLECTIVELY, THE 'CONTRACTS'), EXCEPT THOSE SPECIFIC CONTRACTS, AGREEMENTS, LEASES FOR REAL PROPERTY, AND OPERATING LEASES IDENTIFIED AS EXCLUDED CONTRACTS ON SCHEDULE 1.1(D) HEREOF (THE EXCLUDED CONTRACTS);
(E)ALL OF SELLER'S LOGS, BOOKS, FILES, DATA, SOFTWARE, FCC AND OTHER GOVERNMENTAL APPLICATIONS, EQUIPMENT MANUALS AND WARRANTIES, AND OTHER RECORDS RELATING TO THE FULL ON-AIR BROADCAST OPERATIONS OF THE STATIONS, INCLUDING WITHOUT LIMITATION ALL ELECTRONIC DATA PROCESSING FILES AND SYSTEMS, FCC FILINGS AND ALL RECORDS REQUIRED BY THE FCC TO BE KEPT BY THE STATION;
(F)THE CALL LETTERS OF THE STATION, I.E. WHOA.
THE ACQUIRED ASSETS SHALL BE TRANSFERRED TO BUYER FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES, DEBTS, SECURITY INTERESTS, MORTGAGES, TRUSTS, CLAIMS, PLEDGES, CHARGES, COVENANTS, CONDITIONS OR RESTRICTIONS OF ANY KIND (LIENS), EXCEPT FOR LIENS FOR CURRENT TAXES NOT YET DUE AND PAYABLE.
1.2RETAINED ASSETS.THE FOLLOWING ASSETS AND OBLIGATIONS RELATING TO THE BUSINESS OF THE STATION SHALL BE RETAINED BY SELLER AND SHALL NOT BE SOLD, ASSIGNED OR TRANSFERRED TO OR ASSUMED BY BUYER (THE 'EXCLUDED ASSETS'):
(A)CASH ON HAND AND IN BANKS (OR THEIR EQUIVALENTS), AND ACCOUNTS RECEIVABLE ARISING OUT OF THE OPERATION OF THE STATION PRIOR TO CLOSING;
(B)AS SET FORTH ON SCHEDULES 1.1(B) AND (D), THE EXCLUDED LEASES AND EXCLUDED CONTRACTS, AND ANY OTHER CONTRACT, LEASE AGREEMENT OR UNDERTAKING NOT EXPRESSLY ASSUMED BY BUYER;
(C)ALL PENSION, PROFIT-SHARING, RETIREMENT, STOCK PURCHASE OR SAVINGS PLANS OR TRUSTS AND ANY ASSETS THEREOF AND ALL OTHER EMPLOYEE BENEFIT PLANS;
(D)ALL DEPOSITS AND ALL PREPAID EXPENSES AND TAXES;
(E)SELLER'S CORPORATE RECORDS; AND
(F)ANY OTHER ASSETS, RIGHTS OR THINGS OF VALUE NOT USED OR USEFUL IN THE OPERATION OF THE STATION AS IDENTIFIED ON SCHEDULE 1.2 HERETO.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1RETAINED LIABILITIES. BUYER EXPRESSLY DOES NOT, AND SHALL NOT, ASSUME OR BE DEEMED TO ASSUME, UNDER THIS AGREEMENT OR OTHERWISE BY REASON OF THE TRANSACTIONS CONTEMPLATED HEREBY, ANY LIABILITY, OBLIGATION, COMMITMENT, UNDERTAKING, EXPENSE OR AGREEMENT OF SELLER OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN OR ABSOLUTE OR CONTINGENT (HEREIN COLLECTIVELY AS THE RETAINED LIABILITIES). SELLER AGREES AND ACKNOWLEDGES THAT BUYER IS NOT AGREEING TO ASSUME, AND SHALL NOT ASSUME, ANY LIABILITY OR OBLIGATION OF SELLER TO SELLERS EMPLOYEES.
ARTICLE 3
CONSIDERATION
3.1PURCHASE PRICE. IN CONSIDERATION FOR THE TRANSFER OF THE ACQUIRED ASSETS, BUYER SHALL PAY SELLER THE SUM OF FOUR HUNDRED SIXTY ONE THOUSAND FIVE HUNDRED FIFTY EIGHTAND NO/100 DOLLARS ($461,558.00) (THE PURCHASE PRICE), PAYABLE TO SELLER IN CASH AT THE CLOSING BY WIRE TRANSFER OF SAME DAY FEDERAL FUNDS TO AN ACCOUNT DESIGNATED BY SELLER AT LEAST TWO (2) BUSINESS DAYS BEFORE THE CLOSING.
3.2ESCROW FUNDS. CONCURRENTLY WITH THE EXECUTION OF THIS AGREEMENT, BUYER SHALL DELIVER TO ZPW CARNEY STANTON LLC., LOCATED IN CORAL GABLES, FLORIDA (THE ESCROW AGENT), THE SUM OF TWENTY FIVE THOUSAND DOLLARS ($25,000.00) TO BE HELD AS AN EARNEST MONEY DEPOSIT (THE EARNEST MONEY DEPOSIT) PURSUANT TO AN ESCROW AGREEMENT OF EVEN DATE HEREWITH. THE EARNEST MONEY DEPOSIT SHALL BE PAID TO SELLER AT CLOSING AS A PORTION OF THE PURCHASE PRICE DUE FROM BUYER, OR SHALL OTHERWISE BE MADE AVAILABLE TO SELLER OR RELEASED TO BUYER IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
3.3PRO-RATIONS. THE PARTIES AGREE TO PRORATE ALL EXPENSES ARISING OUT OF THE OPERATION OF THE STATIONS WHICH ARE INCURRED, ACCRUED OR PAYABLE, AS OF 11:59 P.M. LOCAL TIME OF THE DAY PRECEDING THE CLOSING. BUYER SHALL PREPARE THE INITIAL AND FINAL STATEMENTS OF PRO-RATIONS, INCLUDING INFORMATION PRESENTED BY SELLER. THE ITEMS TO BE PRORATED SHALL INCLUDE, BUT NOT BE LIMITED TO, POWER AND UTILITIES CHARGES, FCC REGULATORY FEES, REAL AND PERSONAL PROPERTY TAXES UPON THE BASIS OF THE MOST RECENT TAX BILLS AND INFORMATION AVAILABLE, SECURITY DEPOSITS, AND SIMILAR PREPAID AND DEFERRED ITEMS. ON THE CLOSING DATE, THE PRO-RATIONS SHALL, INSOFAR AS FEASIBLE, BE DETERMINED AND PAID ON THE CLOSING DATE, WITH FINAL SETTLEMENT AND PAYMENT TO BE MADE WITHIN FORTY-FIVE (45) DAYS AFTER THE CLOSING DATE.

3.4ALLOCATION. ON OR BEFORE THE CLOSING DATE, SELLER AND BUYER SHALL MUTUALLY DETERMINE AN ALLOCATION OF PURCHASE PRICE AMONG THE ASSETS THAT COMPLIES WITH SECTION 1060 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

ARTICLE 4
GOVERNMENTAL CONSENTS
4.1FCC CONSENT. IT IS SPECIFICALLY UNDERSTOOD AND AGREED BY BUYER AND SELLER THAT CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY IS EXPRESSLY CONDITIONED ON AND IS SUBJECT TO THE PRIOR CONSENT AND APPROVAL OF THE FCC (FCC CONSENT) WITHOUT THE IMPOSITION OF ANY CONDITIONS THAT MIGHT BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE RESULTS OF OPERATIONS OF THE STATION OR WITH RESPECT TO BUYER.
4.2FCC APPLICATION. WITHIN FIVE (5) BUSINESS DAYS AFTER EXECUTION OF THIS AGREEMENT, THE PARTIES SHALL FILE WITH THE FCC AN APPLICATION FOR ASSIGNMENT OF THE FCC LICENSES (FCC APPLICATION) FROM SELLER TO BUYER. THE PARTIES SHALL THEREAFTER USE ALL REASONABLE EFFORTS TO OBTAIN THE GRANT OF THE FCC APPLICATION AS EXPEDITIOUSLY AS PRACTICABLE. IF THE FCC CONSENT IMPOSES ANY CONDITION ON A PARTY HERETO, SUCH PARTY SHALL USE REASONABLE EFFORTS TO COMPLY WITH SUCH CONDITION; PROVIDED, HOWEVER, THAT NO PARTY SHALL BE REQUIRED HEREUNDER TO COMPLY WITH ANY CONDITION THAT WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE RESULTS OF OPERATIONS OF SUCH PARTY OR ANY AFFILIATED ENTITY. IF RECONSIDERATION OR JUDICIAL REVIEW IS SOUGHT WITH RESPECT TO THE FCC CONSENT, THE PARTY AFFECTED SHALL VIGOROUSLY OPPOSE SUCH EFFORTS FOR RECONSIDERATION OR JUDICIAL REVIEW; PROVIDED, HOWEVER, SUCH PARTY SHALL NOT BE REQUIRED TO TAKE ANY ACTION WHICH WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE RESULTS OF OPERATIONS OF SUCH PARTY OR ANY AFFILIATED ENTITY. NOTHING IN THIS SECTION 4.2 SHALL BE CONSTRUED TO LIMIT A PARTYS RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO ARTICLE 13 HEREOF.
4.3RENEWAL APPLICATION. SELLER HAS TIMELY FILED AN APPLICATION FOR RENEWAL OF THE STATIONS FCC AUTHORIZATIONS [BRTTA-20040730ABQ] (THE RENEWAL APPLICATION).
ARTICLE 5
CLOSING
5.1CLOSING. EXCEPT AS OTHERWISE MUTUALLY AGREED UPON BY SELLER AND BUYER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN (THE CLOSING) SHALL OCCUR WITHIN TEN (10) BUSINESS DAYS AFTER THE FCC CONSENT SHALL HAVE BECOME A FINAL ORDER (AS HEREINAFTER DEFINED) (THE CLOSING DATE). AS USED HEREIN, THE TERM FINAL ORDER MEANS A WRITTEN ACTION OR ORDER ISSUED BY THE FCC SETTING FORTH THE FCC CONSENT (A) WHICH HAS NOT BEEN REVERSED, STAYED, ENJOINED, SET ASIDE, ANNULLED OR SUSPENDED, AND (B) WITH RESPECT TO WHICH (I) NO REQUESTS HAVE BEEN FILED FOR ADMINISTRATIVE OR JUDICIAL REVIEW, RECONSIDERATION, APPEAL OR STAY, AND THE TIME FOR FILING ANY SUCH REQUESTS AND FOR THE FCC TO SET ASIDE THE ACTION ON ITS OWN MOTION (WHETHER UPON RECONSIDERATION OR OTHERWISE) HAS EXPIRED, OR (II) IN THE EVENT OF REVIEW, RECONSIDERATION OR APPEAL, THE TIME FOR FURTHER REVIEW, RECONSIDERATION OR APPEAL HAS EXPIRED. NOTWITHSTANDING THE FOREGOING, BUYER, AT ITS SOLE OPTION, MAY ELECT TO PROCEED WITH THE CLOSING UPON PUBLIC NOTICE OF THE GRANT OF FCC CONSENT BUT PRIOR TO THE DATE ON WHICH THE FCC CONSENT SHALL HAVE BECOME A FINAL ORDER, UPON TEN (10) DAYS WRITTEN NOTICE TO SELLER. ALL ACTIONS TAKEN AT THE CLOSING WILL BE CONSIDERED AS HAVING BEEN TAKEN SIMULTANEOUSLY, AND NO SUCH ACTIONS WILL BE CONSIDERED TO BE COMPLETED UNTIL ALL SUCH ACTIONS HAVE BEEN COMPLETED. THE CLOSING SHALL BE HELD AT SUCH PLACE AS THE PARTIES HERETO MAY AGREE.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
6.1AUTHORITY. SELLER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF FLORIDA. SELLERS EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON ITS PART. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY SELLER AND THIS AGREEMENT CONSTITUTES, AND THE OTHER AGREEMENTS TO BE EXECUTED IN CONNECTION HEREWITH WILL CONSTITUTE, THE VALID AND BINDING OBLIGATION OF SELLER, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
6.2NO CONFLICT.THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY SELLER WILL NOT (I) CONFLICT WITH, OR RESULT IN A VIOLATION OF, ANY PROVISION OF THE ARTICLES OF INCORPORATION OF SELLER; (II) CONSTITUTE OR RESULT IN A BREACH OF OR DEFAULT (OR AN EVENT WHICH WITH NOTICE OR LAPSE OF TIME, OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN THE TERMINATION OR SUSPENSION OF, OR ACCELERATE THE PERFORMANCE REQUIRED BY, OR RESULT IN A RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION OF ANY CONTRACT, LEASE OR ANY OTHER MATERIAL AGREEMENT, INDENTURE, COVENANT, INSTRUMENT, LICENSE OR PERMIT BY WHICH SELLER IS BOUND OR ANY OF THE ASSETS MAY BE SUBJECT, INCLUDING, WITHOUT LIMITATION, ANY CONTRACT, ANY EXCLUDED CONTRACT, OR ANY EXCLUDED LEASE, (III) VIOLATE ANY LAW, STATUTE, RULE, REGULATION, ORDER, WRIT, INJUNCTION OR DECREE OF ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY OR AGENCY AND WHICH IS APPLICABLE TO SELLER OR ANY OF THE ASSETS, (IV) RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE OF ANY NATURE WHATSOEVER ON ANY OF THE ASSETS, OR (V) REQUIRE THE CONSENT OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY, LENDING INSTITUTION OR OTHER THIRD PARTY OTHER THAN THE FCC CONSENT.
6.3AUTHORIZATIONS. SCHEDULE 1.1(A) HERETO CONTAINS A TRUE AND COMPLETE LIST OF THE AUTHORIZATIONS (ALSO REFERRED TO HEREIN AS THE FCC LICENSES). SELLER IS THE AUTHORIZED LEGAL HOLDER OF THE AUTHORIZATIONS. THE AUTHORIZATIONS ARE VALIDLY ISSUED, IN GOOD STANDING AND IN FULL FORCE AND EFFECT. THE AUTHORIZATIONS ARE ALL OF THE LICENSES, PERMITS OR OTHER AUTHORIZATIONS FROM GOVERNMENTAL AND REGULATORY AUTHORITIES NECESSARY TO OPERATE THE STATION. NONE OF THE LICENSES, PERMITS AND AUTHORIZATIONS LISTED ON SCHEDULE 1.1(A) IS SUBJECT TO ANY RESTRICTIONS OR CONDITIONS THAT WOULD LIMIT IN ANY MATERIAL RESPECT THE OPERATIONS OF THE STATION. EXCEPT AS SET FORTH IN SCHEDULE 1.1(A), SELLER HAS OPERATED AND IS OPERATING THE STATION IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE FCC AUTHORIZATIONS, AND ALL RULES, REGULATIONS AND POLICIES OF THE FCC (THE 'COMMUNICATIONS LAWS'). THE STATION HAS BEEN GRANTED SPECIAL TEMPORARY AUTHORITY [BRSTA-20040528AWF] (THE STA) TO REMAIN SILENT, AS OF MAY 23, 2004. THE STATION HAS ALSO BEEN GRANTED A CONSTRUCTION PERMIT [BPTTA-20040505ABI] (THE CP) FOR FACILITIES AT A LOCATION AND FOR PARAMETERS DIFFERENT THAN THE CURRENT FCC LICENSE. BUYER ACKNOWLEDGES THAT, AS OF THE CLOSING DATE, THE STATION WILL NOT BE BROADCASTING A SIGNAL, AND SELLER WILL NOT HAVE CONSTRUCTED NEW FACILITIES AS AUTHORIZED BY THE CP. THERE IS NOT NOW PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED ANY ACTION BY OR BEFORE THE FCC TO REVOKE, CANCEL, RESCIND, MODIFY OR REFUSE TO RENEW ANY OF SUCH FCC AUTHORIZATIONS, SELLER HAS NOT RECEIVED ANY NOTICE OF AND HAS NO KNOWLEDGE OF ANY PENDING, ISSUED OR OUTSTANDING ORDER BY OR BEFORE THE FCC, OR OF ANY INVESTIGATION, ORDER TO SHOW CAUSE, NOTICE OF VIOLATION, NOTICE OF APPARENT LIABILITY, NOTICE OF FORFEITURE, OR MATERIAL COMPLAINT AGAINST EITHER THE STATION OR SELLER, AND TO SELLERS KNOWLEDGE, THERE IS NO FACTUAL OR LEGAL BASIS FOR ANY SUCH FCC ACTION OR PROCEEDING TO BE INSTITUTED. EXCEPT AS SET FORTH IN SCHEDULE 1.1(A), ALL MATERIAL REPORTS AND FILINGS REQUIRED TO BE FILED WITH THE FCC BY SELLER WITH RESPECT TO THE OPERATIONS OF THE STATION HAVE BEEN TIMELY FILED, AND ALL SUCH REPORTS AND FILINGS ARE ACCURATE AND COMPLETE IN ALL MATERIAL RESPECTS.
6.4TANGIBLE PERSONAL PROPERTY.   SCHEDULE 1.1(C) HERETO CONTAINS A TRUE AND COMPLETE LIST OF THE TANGIBLE PERSONAL PROPERTY. THE TANGIBLE PERSONAL PROPERTY WHICH IS LEASED IS IDENTIFIED AS SUCH ON SCHEDULE 1.1(C). THE TANGIBLE PERSONAL PROPERTY IS ALL OF THE TANGIBLE PERSONAL PROPERTY NECESSARY TO OPERATE THE STATION IN THE MANNER IN WHICH IT IS PRESENTLY OPERATED. SELLER (I) IS THE LAWFUL OWNER OF ALL OF THE TANGIBLE PERSONAL PROPERTY IT PURPORTS TO OWN, (II) HAS VALID LEASEHOLD INTERESTS IN THE TANGIBLE PERSONAL PROPERTY IT PURPORTS TO LEASE, IN ALL CASES FREE AND CLEAR OF ANY LIENS, EXCEPT FOR LIENS DISCLOSED IN SCHEDULE 1.1(C) ATTACHED HERETO, WHICH SHALL BE DISCHARGED AT CLOSING AS TO ALL OWNED TANGIBLE PERSONAL PROPERTY, AND EXCEPT FOR PERMITTED LIENS. EXCEPT AS SET FORTH ON SCHEDULE 1.1(C), AS OF THE DATE HEREOF, EACH ITEM OF TANGIBLE PERSONAL PROPERTY OWNED BY SELLER IS IN GOOD REPAIR AND CONDITION, ORDINARY WEAR AND TEAR EXCEPTED, HAS BEEN MAINTAINED IN ACCORDANCE WITH INDUSTRY PRACTICE, AND IS AVAILABLE FOR IMMEDIATE USE IN THE BUSINESS AND OPERATIONS OF THE STATION.
6.5CONTRACTS. SCHEDULE 1.1(D) HERETO CONTAINS A TRUE AND COMPLETE LIST OF ALL CONTRACTS THAT ARE TO BE CONVEYED TO BUYER AT THE CLOSING AND ALL EXCLUDED CONTRACTS. SELLER IS NOT IN VIOLATION OR BREACH OF, NOR HAS SELLER RECEIVED IN WRITING ANY CLAIM OR THREAT THAT IT HAS BREACHED ANY OF THE TERMS AND CONDITIONS OF, ANY CONTRACT OR EXCLUDED CONTRACT. NEITHER SELLER NOR, TO SELLER'S KNOWLEDGE, ANY OTHER PARTY TO ANY CONTRACT OR EXCLUDED CONTRACT IS IN DEFAULT THEREUNDER OR BREACH THEREOF. SELLER HAS DELIVERED TO BUYER A TRUE, ACCURATE AND COMPLETE COPY OF EACH CONTRACT AND EXCLUDED CONTRACT, INCLUDING ALL AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS THERETO OR WAIVERS THEREUNDER. EXCEPT AS SET FORTH ON SCHEDULE 1.1(D) ATTACHED HERETO, NEITHER THE EXECUTION AND DELIVERY BY SELLER OF THIS AGREEMENT NOR THE CONSUMMATION BY SELLER OF THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT REQUIRES THE CONSENT OF ANY PARTY TO A CONTRACT OR ANY OTHER AGREEMENT OR OBLIGATION OF SELLER, WHETHER OR NOT SUCH AGREEMENT OR OBLIGATION IS TO BE ASSIGNED TO OR ASSUMED BY BUYER, AND ANY MATERIAL CONTRACT REQUIRING CONSENT TO ASSIGNMENT BY A THIRD PARTY IS IDENTIFIED ON SCHEDULE 1.1(D) WITH AN ASTERISK.
6.6COMPLIANCE WITH LAW. TO THE BEST OF SELLERS KNOWLEDGE, AND EXCEPT AS SET FORTH ON SCHEDULE 1.1(A) OF THIS AGREEMENT, THE ACQUIRED ASSETS AND THE SELLERS OPERATION AND OWNERSHIP OF THE STATION ARE IN COMPLIANCE WITH ALL APPLICABLE STATUTES, LAWS, ORDINANCES, REGULATIONS, RULES OR ORDERS OF ANY FEDERAL, STATE OR LOCAL GOVERNMENT.
6.7LITIGATION. THERE ARE NO CLAIMS, ACTIONS, SUITS, LITIGATION, LABOR DISPUTES, ARBITRATIONS, PROCEEDINGS OR INVESTIGATIONS PENDING OR, TO THE BEST KNOWLEDGE OF SELLER, THREATENED AGAINST OR AFFECTING SELLER, THE ACQUIRED ASSETS OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. SELLER IS NOT SUBJECT TO ANY ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AGENCY OR ENTITY WITH RESPECT TO THE STATION OR THE ACQUIRED ASSETS.
6.8TAXES. SELLER HAS PAID ALL TAXES REQUIRED TO BE PAID BY SELLER WITH RESPECT TO THE STATION. THERE ARE NO PENDING OR, TO THE BEST KNOWLEDGE OF SELLER, THREATENED, INVESTIGATIONS OR CLAIMS AGAINST SELLER FOR OR RELATING TO ANY LIABILITY IN RESPECT OF TAXES AND, TO THE BEST KNOWLEDGE OF SELLER, NO FACTS OR CIRCUMSTANCES EXIST WHICH INDICATE THAT ANY SUCH INVESTIGATIONS OR CLAIMS IN RESPECT OF TAXES MAY BE BROUGHT OR ARE UNDER DISCUSSION WITH ANY GOVERNMENTAL AUTHORITIES. ALL TAXES REQUIRED TO BE WITHHELD BY SELLER ON OR BEFORE THE DATE HEREOF HAVE BEEN WITHHELD AND PAID WHEN DUE TO THE APPROPRIATE AGENCY OR AUTHORITY.
6.9DISCLOSURE. THE REPRESENTATIONS AND WARRANTIES OF SELLER HEREIN OR IN ANY DOCUMENT, EXHIBIT, STATEMENT, CERTIFICATE OR SCHEDULE FURNISHED BY OR ON BEHALF OF SELLER TO BUYER AS REQUIRED BY THIS AGREEMENT DO NOT CONTAIN NOR WILL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT OR WILL OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS HEREIN OR THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. FROM THE DATE OF THIS AGREEMENT, THROUGH THE CLOSING DATE, SELLER SHALL ADVISE BUYER IN WRITING IMMEDIATELY OF ALL CHANGES, IF ANY, IN CIRCUMSTANCES THAT WOULD CAUSE ANY REPRESENTATION, WARRANTY OR STATEMENT CONTAINED HEREIN TO BE INACCURATE OR WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE STATION.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
BUYER REPRESENTS AND WARRANTS TO SELLER AS FOLLOWS:
7.1ORGANIZATION AND STANDING. BUYER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE AND HAS THE REQUISITE CORPORATE POWER TO CARRY ON ITS BUSINESS AS IT IS NOW BEING CONDUCTED.
7.2AUTHORITY. BUYERS EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY ACTION ON ITS PART. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY BUYER AND UPON OBTAINING ALL NECESSARY APPROVALS OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THIS AGREEMENT WILL CONSTITUTE, AND THE OTHER AGREEMENTS TO BE EXECUTED IN CONNECTION HEREWITH WILL CONSTITUTE, THE VALID AND BINDING OBLIGATION OF BUYER, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
7.3LITIGATION. THERE ARE NO CLAIMS, ACTIONS, SUITS, LITIGATION, LABOR DISPUTES, ARBITRATIONS, PROCEEDINGS OR INVESTIGATIONS PENDING OR, TO THE BEST KNOWLEDGE OF BUYER, THREATENED AGAINST BUYER RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
7.4FINANCIAL CAPABILITY. BUYER HAS ON HAND OR FROM COMMITTED SOURCES THE FUNDS NECESSARY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT..
7.5DISCLOSURE. THE REPRESENTATIONS AND WARRANTIES OF BUYER HEREIN OR IN ANY DOCUMENT, EXHIBIT, STATEMENT, CERTIFICATE OR SCHEDULE FURNISHED BY OR ON BEHALF OF BUYER TO SELLER AS REQUIRED BY THIS AGREEMENT DO NOT CONTAIN NOR WILL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT OR WILL OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS HEREIN OR THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
ARTICLE 8
SELLER COVENANTS
8.1OPERATION OF BUSINESS. BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING DATE, SELLER SHALL MAINTAIN AND PRESERVE SELLERS RIGHTS UNDER THE AUTHORIZATIONS AND OPERATE THE STATION IN THE ORDINARY COURSE OF BUSINESS, IN ACCORDANCE WITH PAST PRACTICE. IN PARTICULAR, WITHOUT LIMITATION, SELLER SHALL:
(A)USE COMMERCIALLY REASONABLY EFFORTS TO PRESERVE AND PROTECT ALL OF THE STATION ASSETS IN GOOD REPAIR AND CONDITION, NORMAL WEAR AND TEAR EXCEPTED, AND MAINTAIN SUCH STATION ASSETS ACCORDING TO INDUSTRY STANDARDS, GOOD ENGINEERING PRACTICES AND ALL APPLICABLE FCC RULES;
(B)MAINTAIN AND PRESERVE SELLER'S RIGHTS UNDER THE FCC LICENSES, OPERATE THE STATION IN ACCORDANCE WITH THE ACT, THE FCC RULES AND THE FCC LICENSES, TIMELY FILE AND PROSECUTE ANY REQUIRED EXTENSIONS OF OUTSTANDING CONSTRUCTION PERMITS, APPLICATIONS OR AUTHORIZATIONS WHICH MAY EXPIRE PRIOR TO THE CLOSING DATE, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE STA AND THE RENEWAL APPLICATION;
(C) AND SELLER SHALL NOT:
(I)PLACE OR ALLOW TO BE PLACED ON ANY OF THE STATION ASSETS ANY LIEN OTHER THAN A PERMITTED LIEN;
(II) SELL OR OTHERWISE DISPOSE OF ANY MATERIAL STATION ASSET;
(III) COMMIT ANY ACT OR OMIT TO DO ANY ACT WHICH WILL CAUSE A BREACH OF ANY MATERIAL CONTRACT OR TERMINATE OR FAIL TO RENEW ANY MATERIAL CONTRACT;
(IV)VIOLATE IN ANY MATERIAL RESPECT ANY LAW, STATUTE, RULE, GOVERNMENTAL REGULATION OR ORDER OF ANY COURT OR GOVERNMENTAL OR REGULATORY AUTHORITY (WHETHER FEDERAL, STATE OR LOCAL); OR
(V)CAUSE OR PERMIT BY ANY ACT, OR FAILURE TO ACT, ANY OF THE FCC LICENSES TO EXPIRE, BE SURRENDERED, ADVERSELY MODIFIED, OR OTHERWISE TERMINATED, OR THE FCC TO INSTITUTE ANY PROCEEDINGS FOR THE SUSPENSION, REVOCATION OR ADVERSE MODIFICATION OF ANY OF THE FCC LICENSES, OR FAIL TO PROSECUTE WITH DUE DILIGENCE ANY PENDING APPLICATIONS TO THE FCC.
8.2CONTRACTS. BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING DATE, SELLER SHALL NOT ENTER INTO ANY CONTRACT OR COMMITMENT RELATING TO THE STATION OR THE ACQUIRED ASSETS OR INCUR ANY OTHER OBLIGATION WITH RESPECT TO THE STATION OR THE ACQUIRED ASSETS WITHOUT OBTAINING BUYERS PRIOR WRITTEN CONSENT.
8.3LIEN SEARCH. SELLER SHALL DELIVER TO BUYER LIEN SEARCH REPORTS (THE LIEN SEARCH), IN FORM AND SUBSTANCE SATISFACTORY TO BUYER AND DATED NO EARLIER THAN 30 DAYS PRIOR TO THE CLOSING, REFLECTING THE RESULTS OF UCC, TAX AND JUDGMENT LIEN SEARCHES CONDUCTED AT SECRETARY OF STATE OFFICE OF THE STATE OF FLORIDA AND THE STATE OF NORTH CAROLINA, AND IN THE COUNTY CLERK'S OFFICE OF EACH COUNTY IN WHICH THE ASSETS ARE LOCATED, DEMONSTRATING THAT THE ACQUIRED ASSETS ARE FREE AND CLEAR OF ALL LIENS EXCEPT LIENS THAT ARE TO BE RELEASED ON OR BEFORE THE CLOSING DATE.
ARTICLE 9
CONDITIONS
9.1CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. THE OBLIGATIONS OF BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS, EXCEPT TO THE EXTENT BUYER SHALL HAVE WAIVED IN WRITING SATISFACTION OF SUCH CONDITION:
(A)THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND ON THE CLOSING DATE AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES WERE MADE ON SUCH DATE.
(B)SELLER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS, REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH PRIOR TO THE CLOSING.
(C)SELLER SHALL HAVE DELIVERED TO BUYER ALL OF THE DOCUMENTS REQUIRED BY SECTION 10.1 HEREOF.
(D)THE FCC CONSENT SHALL HAVE BECOME A FINAL ORDER.
(E)THE CP SHALL BE EFFECTIVE.
(F)BUYER SHALL PROMPTLY AFTER THE DATE HEREOF COMMENCE NEGOTIATIONS IN GOOD FAITH TO ENTER INTO, AND SHALL HAVE AGREED TO THE FORM OF A   REAL PROPERTY LEASE ON OR BEFORE OCTOBER 15, 2004 FOR THE FACILITIES SPECIFIED IN THE CP ON COMMERCIALLY REASONABLE TERMS ACCEPTABLE TO BUYER, AND IF THE CONDITION SET FORTH HEREIN IS NOT SATISFIED AS OF OCTOBER 15, 2004, THEN BUYER SHALL EITHER WAIVE SAID CONDITION OR BUYER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SELLER DELIVERED ON OR BEFORE OCTOBER 15, 2004, WITHOUT FURTHER OBLIGATION BY EITHER PARTY, PROVIDED, THAT BUYER SHALL BE ENTITLED TO PROMPT RETURN OF THE EARNEST MONEY DEPOSIT.
(G)THE RENEWAL APPLICATION SHALL HAVE BEEN GRANTED BY THE FCC WITH NO CONDITION MATERIALLY ADVERSE TO BUYER.
9.2CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. THE OBLIGATIONS OF SELLER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS, EXCEPT TO THE EXTENT SELLER SHALL HAVE WAIVED IN WRITING SATISFACTION OF SUCH CONDITION:
(A)THE REPRESENTATIONS AND WARRANTIES MADE BY BUYER IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND ON THE CLOSING DATE AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES WERE MADE ON SUCH DATE.
(B)BUYER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS, REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY IT PRIOR TO THE CLOSING.
(C)BUYER SHALL HAVE DELIVERED TO SELLER ALL OF THE DOCUMENTS REQUIRED BY SECTION 10.2 HEREOF.
(D)THE FCC CONSENT SHALL BE EFFECTIVE.
ARTICLE 10
CLOSING DELIVERIES
10.1SELLERS DELIVERIES. AT THE CLOSING, SELLER SHALL DELIVER OR CAUSE TO BE DELIVERED TO BUYER THE FOLLOWING:
(A)A BILL OF SALE, ASSIGNMENT AND ASSUMPTION OF FCC AUTHORIZATIONS, ASSIGNMENT AND ASSUMPTION OF CONTRACTS, AND SUCH OTHER ASSIGNMENTS AND INSTRUMENTS OF CONVEYANCE, TRANSFER AND ASSIGNMENT, ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO COUNSEL FOR BUYER, AS SHALL BE EFFECTIVE TO VEST IN BUYER OR ITS PERMITTED ASSIGNEE, GOOD AND MARKETABLE TITLE IN AND TO THE ACQUIRED ASSETS (THE CONVEYANCE DOCUMENTS);
(B)CONSENTS TO ASSIGNMENT FOR EACH MATERIAL CONTRACT, AS REQUIRED;
(C)A CERTIFICATE, EXECUTED BY AN OFFICER OF SELLER IN SUCH DETAIL AS BUYER SHALL REASONABLY REQUEST, CERTIFYING TO THE FULFILLMENT OR SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 9.1. THE DELIVERY OF SUCH CERTIFICATE SHALL CONSTITUTE A REPRESENTATION AND WARRANTY OF SELLER AS TO THE STATEMENTS SET FORTH THEREIN;
(D)A NOTICE TO THE ESCROW AGENT, EXECUTED BY SELLER;
(E)UPDATED SCHEDULES REFLECTING ANY CHANGES NECESSARY TO RENDER THE INFORMATION CONTAINED THEREIN TRUE AND ACCURATE ON THE CLOSING DATE;
(F)PAYOFF LETTERS FROM ANY PARTY HOLDING A LIEN TO BE RELEASED AT THE CLOSING, AND RELEASES OR UCC-3 TERMINATION STATEMENTS SUFFICIENT TO TERMINATE LIENS; AND
(G)ORIGINALS OR COPIES OF ALL RECORDS REQUIRED TO BE MAINTAINED BY THE FCC WITH RESPECT TO THE STATION.
10.2BUYERS DELIVERIES. AT THE CLOSING, BUYER SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER THE FOLLOWING:
(A)THE PAYMENT REQUIRED UNDER SECTION 3.1 HEREOF;
(B)A NOTICE TO THE ESCROW AGENT EXECUTED BY BUYER;
(C)THE CONVEYANCE DOCUMENTS IN WHICH BUYER ASSUMES AN OBLIGATION; AND
(D)A CERTIFICATE, EXECUTED BY AN OFFICER OF BUYER, IN SUCH DETAIL AS SELLER SHALL REASONABLY REQUEST, CERTIFYING TO THE FULFILLMENT OR SATISFACTION BY BUYER OF THE CONDITIONS SET FORTH IN SECTION 9.2. THE DELIVERY OF SUCH CERTIFICATE SHALL CONSTITUTE A REPRESENTATION AND WARRANTY OF BUYER AS TO THE STATEMENTS SET FORTH THEREIN.
ARTICLE 11
TRANSFER TAXES, FEES AND EXPENSES
11.1EXPENSES. EXCEPT AS SET FORTH IN SECTION 11.2 AND 11.3 HEREOF, EACH PARTY HERETO SHALL BE SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES INCURRED BY IT IN CONNECTION WITH THE NEGOTIATION AND PREPARATION OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY.
11.2TRANSFER TAXES AND SIMILAR CHARGES. SELLER AND BUYER SHALL EACH PAY 50% OF THE AMOUNT OF ANY AND ALL RECORDING, EXCISE, SALES OR USE TAXES IMPOSED BY REASON OF THE TRANSFER OF THE ACQUIRED ASSETS IN ACCORDANCE WITH THIS AGREEMENT.
11.3GOVERNMENTAL FILING OR GRANT FEES. ANY FILING OR GRANT FEES IMPOSED BY ANY GOVERNMENTAL AUTHORITY THE CONSENT OF WHICH IS REQUIRED TO THE TRANSACTIONS TO BE COMPLETED AS OF THE CLOSING SET FORTH IN SECTION 5.1 OF THIS AGREEMENT, SPECIFICALLY INCLUDING WITH RESPECT TO THE FCC APPLICATION, SHALL BE BORNE EQUALLY BY BUYER AND SELLER.
ARTICLE 12
INDEMNIFICATION
12.1SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT SHALL SURVIVE THE CLOSING FOR A PERIOD OF TWO YEARS FROM THE CLOSING DATE. THE RIGHT OF ANY PARTY TO RECOVER DAMAGES (AS DEFINED IN SECTION 12.2 HEREOF) ON ANY CLAIM SHALL NOT BE AFFECTED BY THE TERMINATION OF ANY REPRESENTATIONS AND WARRANTIES AS SET FORTH ABOVE PROVIDED THAT NOTICE OF THE EXISTENCE OF SUCH CLAIM HAS BEEN GIVEN BY THE INDEMNIFIED PARTY (AS HEREINAFTER DEFINED) TO THE INDEMNIFYING PARTY (AS HEREINAFTER DEFINED) PRIOR TO SUCH TERMINATION.
12.2INDEMNIFICATION OF BUYER BY SELLER. SELLER SHALL INDEMNIFY AND HOLD BUYER AND ITS ATTORNEYS, AFFILIATES, REPRESENTATIVES, AGENTS, OFFICERS, DIRECTORS, SUCCESSORS OR ASSIGNS HARMLESS FROM AND AGAINST ANY LIABILITY, LOSS, COST, EXPENSE, JUDGMENT, ORDER, SETTLEMENT, OBLIGATION, DEFICIENCY, CLAIM, SUIT, PROCEEDING (WHETHER FORMAL OR INFORMAL), INVESTIGATION, LIEN OR OTHER DAMAGE, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES AND EXPENSES, (ALL OF THE FOREGOING ITEMS FOR PURPOSES OF THIS AGREEMENT ARE REFERRED TO AS DAMAGES), RESULTING FROM, ARISING OUT OF OR INCURRED WITH RESPECT TO:
(A)A BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT OF SELLER CONTAINED HEREIN, SUBJECT TO NOTICE OF A CLAIM BEING GIVEN BEFORE THE EXPIRATION OF THE APPLICABLE PERIOD SPECIFIED IN SECTION 12.1 HEREOF WITH RESPECT TO THE REPRESENTATIONS OR WARRANTIES BY SELLER CONTAINED HEREIN;
(B)THE RETAINED LIABILITIES; OR
(C)ANY AND ALL CLAIMS, LIABILITIES OR OBLIGATIONS OF ANY NATURE, ABSOLUTE OR CONTINGENT, RELATING TO THE BUSINESS OR OPERATION OF THE STATION AND THE ACQUIRED ASSETS PRIOR TO THE CLOSING DATE.
THE TERM DAMAGES AS USED IN THIS AGREEMENT IS NOT LIMITED TO MATTERS ASSERTED BY THIRD-PARTIES AGAINST A PARTY, BUT INCLUDES DAMAGES INCURRED OR SUSTAINED BY A PARTY IN THE ABSENCE OF THIRD- PARTY CLAIMS.
12.3INDEMNIFICATION OF SELLER. BUYER SHALL INDEMNIFY AND HOLD SELLER AND ITS ATTORNEYS, AFFILIATES, REPRESENTATIVES, AGENTS, OFFICERS, DIRECTORS, SUCCESSORS OR ASSIGNS, HARMLESS FROM AND AGAINST ANY DAMAGES RESULTING FROM, ARISING OUT OF, OR INCURRED WITH RESPECT TO:
(A)A MATERIAL BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT BY BUYER CONTAINED HEREIN, SUBJECT TO NOTICE OF A CLAIM BEING GIVEN BEFORE THE EXPIRATION OF THE APPLICABLE PERIOD SPECIFIED IN SECTION 12.1 HEREOF WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES MADE BY BUYER HEREIN; OR
(B)ANY AND ALL CLAIMS, LIABILITIES OR OBLIGATIONS OF ANY NATURE, ABSOLUTE OR CONTINGENT, RELATING TO THE BUSINESS AND OPERATION OF THE STATION AND THE ACQUIRED ASSETS AS CONDUCTED BY BUYER ON AND AFTER THE CLOSING DATE.
ARTICLE 13
TERMINATION RIGHTS
13.1TERMINATION. THIS AGREEMENT MAY BE TERMINATED, BY WRITTEN NOTICE GIVEN BY ANY PARTY (PROVIDED SUCH PARTY IS NOT IN BREACH OF ANY OF ITS OBLIGATIONS, REPRESENTATIONS, WARRANTIES OR DUTIES HEREUNDER) TO THE OTHER PARTY HERETO, AT ANY TIME

Attachment 4


Exhibit 11
Description:
WHOA TRANSFER AGREEMENT

ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (THIS AGREEMENT) IS ENTERED INTO AS OF SEPTEMBER ___, 2004 (THIS AGREEMENT), BY AND BETWEEN TIGER EYE BROADCASTING CORPORATION, A FLORIDA CORPORATION (SELLER), AND ZGS BROADCASTING HOLDINGS, INC., A DELAWARE CORPORATION (BUYER).
WITNESSETH:
WHEREAS, SELLER OWNS CLASS A TELEVISION STATION WHOA-LP, CHANNEL 44, LICENSED TO RALEIGH, NORTH CAROLINA (THE STATION) PURSUANT TO LICENSES ISSUED BY THE FEDERAL COMMUNICATIONS COMMISSION (THE FCC); AND
WHEREAS, BUYER IS A COMPANY FORMED AS A HOLDING COMPANY FOR VARIOUS WHOLLY-OWNED SUBSIDIARIES THAT OWN AND OPERATE RADIO AND TELEVISION STATIONS;
WHEREAS, SELLER DESIRES TO SELL TO BUYER, AND BUYER DESIRES TO PURCHASE FROM SELLER, SUBSTANTIALLY ALL OF THE ASSETS USED IN CONNECTION WITH THE STATION, ALL ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN, INCLUDING THE PRIOR CONSENT OF THE FCC; AND
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL COVENANTS AND AGREEMENTS HEREINAFTER SET FORTH, THE PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE 1
PURCHASE OF ASSETS
1.1TRANSFER OF ASSETS. ON THE CLOSING DATE (AS HEREINAFTER DEFINED), SUBJECT TO THE CONDITIONS CONTAINED HEREIN, SELLER SHALL SELL, ASSIGN, TRANSFER AND CONVEY TO BUYER, AND BUYER SHALL PURCHASE FROM SELLER, ALL OF THE ASSETS, PROPERTIES, INTERESTS AND RIGHTS OF SELLER OF WHATSOEVER KIND AND NATURE, TANGIBLE AND INTANGIBLE, WHICH ARE USED OR HELD FOR USE IN CONNECTION WITH THE OPERATION OF THE STATION (THE ACQUIRED ASSETS), INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING:
(A)ALL LICENSES, PERMITS, PENDING APPLICATIONS AND OTHER AUTHORIZATIONS RELATING TO THE STATION ISSUED TO SELLER BY THE FCC OR FILED BY SELLER WITH THE FCC, OR ANY OTHER GOVERNMENTAL AUTHORITY ON OR PRIOR TO THE CLOSING DATE, TOGETHER WITH RENEWALS OR MODIFICATIONS THEREOF, INCLUDING, WITHOUT LIMITATION, THE LICENSES, PERMITS, APPLICATIONS AND AUTHORIZATIONS LISTED ON SCHEDULE 1.1 (A) ATTACHED HERETO (THE AUTHORIZATIONS);
(B)BUYER IS NOT ACQUIRING ANY OWNED REAL PROPERTY OR ASSUMING ANY LEASE FOR REAL PROPERTY HELD BY SELLER, AND ALL EXISTING LEASES FOR REAL PROPERTY HELD BY SELLER WITH RESPECT TO OPERATION OF THE STATION ARE IDENTIFIED AS EXCLUDED LEASES ON SCHEDULE 1.1(B) HEREOF (THE EXCLUDED LEASES); AND
(C)ALL EQUIPMENT, OFFICE FURNITURE AND FIXTURES, OFFICE MATERIALS AND SUPPLIES, INVENTORY AND OTHER TANGIBLE PERSONAL PROPERTY, OF EVERY KIND AND DESCRIPTION, OWNED OR USED BY SELLER WITH RESPECT TO THE STATION ON THE DATE HEREOF, TOGETHER WITH ANY ADDITIONS THERETO OR REPLACEMENTS THEREOF MADE BETWEEN THE DATE HEREOF AND THE CLOSING DATE, AND LESS ANY RETIREMENTS OR DISPOSITIONS THEREOF MADE BETWEEN THE DATE HEREOF AND THE CLOSING DATE, INCLUDING, WITHOUT LIMITATION, THE PROPERTY IDENTIFIED ON SCHEDULE 1.1(C) ATTACHED HERETO (COLLECTIVELY, THE 'TANGIBLE PERSONAL PROPERTY'), EXCEPT THOSE SPECIFIC ITEMS OF TANGIBLE PERSONAL PROPERTY SET FORTH ON SCHEDULE 1.1(C) HEREOF;
(D)AT BUYERS SOLE ELECTION, SELLER'S RIGHT, TITLE AND INTEREST IN AND TO SELLERS CONTRACTS, AGREEMENTS AND OPERATING LEASES (BUT EXCLUDING ANY AGREEMENT FOR BORROWED MONEY, INCLUDING ANY MORTGAGE) WRITTEN OR ORAL, RELATING TO THE OPERATION OF THE STATION, AS IDENTIFIED ON SCHEDULE 1.1(D) HERETO, TOGETHER WITH ALL CONTRACTS, AGREEMENTS AND OPERATING LEASES WHICH BUYER AGREES IN WRITING TO ASSUME AT THE CLOSING THAT SELLER ENTERS INTO OR ACQUIRES BETWEEN THE DATE HEREOF AND THE CLOSING DATE (AS HEREINAFTER DEFINED) (COLLECTIVELY, THE 'CONTRACTS'), EXCEPT THOSE SPECIFIC CONTRACTS, AGREEMENTS, LEASES FOR REAL PROPERTY, AND OPERATING LEASES IDENTIFIED AS EXCLUDED CONTRACTS ON SCHEDULE 1.1(D) HEREOF (THE EXCLUDED CONTRACTS);
(E)ALL OF SELLER'S LOGS, BOOKS, FILES, DATA, SOFTWARE, FCC AND OTHER GOVERNMENTAL APPLICATIONS, EQUIPMENT MANUALS AND WARRANTIES, AND OTHER RECORDS RELATING TO THE FULL ON-AIR BROADCAST OPERATIONS OF THE STATIONS, INCLUDING WITHOUT LIMITATION ALL ELECTRONIC DATA PROCESSING FILES AND SYSTEMS, FCC FILINGS AND ALL RECORDS REQUIRED BY THE FCC TO BE KEPT BY THE STATION;
(F)THE CALL LETTERS OF THE STATION, I.E. WHOA.
THE ACQUIRED ASSETS SHALL BE TRANSFERRED TO BUYER FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES, DEBTS, SECURITY INTERESTS, MORTGAGES, TRUSTS, CLAIMS, PLEDGES, CHARGES, COVENANTS, CONDITIONS OR RESTRICTIONS OF ANY KIND (LIENS), EXCEPT FOR LIENS FOR CURRENT TAXES NOT YET DUE AND PAYABLE.
1.2RETAINED ASSETS.THE FOLLOWING ASSETS AND OBLIGATIONS RELATING TO THE BUSINESS OF THE STATION SHALL BE RETAINED BY SELLER AND SHALL NOT BE SOLD, ASSIGNED OR TRANSFERRED TO OR ASSUMED BY BUYER (THE 'EXCLUDED ASSETS'):
(A)CASH ON HAND AND IN BANKS (OR THEIR EQUIVALENTS), AND ACCOUNTS RECEIVABLE ARISING OUT OF THE OPERATION OF THE STATION PRIOR TO CLOSING;
(B)AS SET FORTH ON SCHEDULES 1.1(B) AND (D), THE EXCLUDED LEASES AND EXCLUDED CONTRACTS, AND ANY OTHER CONTRACT, LEASE AGREEMENT OR UNDERTAKING NOT EXPRESSLY ASSUMED BY BUYER;
(C)ALL PENSION, PROFIT-SHARING, RETIREMENT, STOCK PURCHASE OR SAVINGS PLANS OR TRUSTS AND ANY ASSETS THEREOF AND ALL OTHER EMPLOYEE BENEFIT PLANS;
(D)ALL DEPOSITS AND ALL PREPAID EXPENSES AND TAXES;
(E)SELLER'S CORPORATE RECORDS; AND
(F)ANY OTHER ASSETS, RIGHTS OR THINGS OF VALUE NOT USED OR USEFUL IN THE OPERATION OF THE STATION AS IDENTIFIED ON SCHEDULE 1.2 HERETO.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
2.1RETAINED LIABILITIES. BUYER EXPRESSLY DOES NOT, AND SHALL NOT, ASSUME OR BE DEEMED TO ASSUME, UNDER THIS AGREEMENT OR OTHERWISE BY REASON OF THE TRANSACTIONS CONTEMPLATED HEREBY, ANY LIABILITY, OBLIGATION, COMMITMENT, UNDERTAKING, EXPENSE OR AGREEMENT OF SELLER OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN OR ABSOLUTE OR CONTINGENT (HEREIN COLLECTIVELY AS THE RETAINED LIABILITIES). SELLER AGREES AND ACKNOWLEDGES THAT BUYER IS NOT AGREEING TO ASSUME, AND SHALL NOT ASSUME, ANY LIABILITY OR OBLIGATION OF SELLER TO SELLERS EMPLOYEES.
ARTICLE 3
CONSIDERATION
3.1PURCHASE PRICE. IN CONSIDERATION FOR THE TRANSFER OF THE ACQUIRED ASSETS, BUYER SHALL PAY SELLER THE SUM OF FOUR HUNDRED SIXTY ONE THOUSAND FIVE HUNDRED FIFTY EIGHTAND NO/100 DOLLARS ($461,558.00) (THE PURCHASE PRICE), PAYABLE TO SELLER IN CASH AT THE CLOSING BY WIRE TRANSFER OF SAME DAY FEDERAL FUNDS TO AN ACCOUNT DESIGNATED BY SELLER AT LEAST TWO (2) BUSINESS DAYS BEFORE THE CLOSING.
3.2ESCROW FUNDS. CONCURRENTLY WITH THE EXECUTION OF THIS AGREEMENT, BUYER SHALL DELIVER TO ZPW CARNEY STANTON LLC., LOCATED IN CORAL GABLES, FLORIDA (THE ESCROW AGENT), THE SUM OF TWENTY FIVE THOUSAND DOLLARS ($25,000.00) TO BE HELD AS AN EARNEST MONEY DEPOSIT (THE EARNEST MONEY DEPOSIT) PURSUANT TO AN ESCROW AGREEMENT OF EVEN DATE HEREWITH. THE EARNEST MONEY DEPOSIT SHALL BE PAID TO SELLER AT CLOSING AS A PORTION OF THE PURCHASE PRICE DUE FROM BUYER, OR SHALL OTHERWISE BE MADE AVAILABLE TO SELLER OR RELEASED TO BUYER IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
3.3PRO-RATIONS. THE PARTIES AGREE TO PRORATE ALL EXPENSES ARISING OUT OF THE OPERATION OF THE STATIONS WHICH ARE INCURRED, ACCRUED OR PAYABLE, AS OF 11:59 P.M. LOCAL TIME OF THE DAY PRECEDING THE CLOSING. BUYER SHALL PREPARE THE INITIAL AND FINAL STATEMENTS OF PRO-RATIONS, INCLUDING INFORMATION PRESENTED BY SELLER. THE ITEMS TO BE PRORATED SHALL INCLUDE, BUT NOT BE LIMITED TO, POWER AND UTILITIES CHARGES, FCC REGULATORY FEES, REAL AND PERSONAL PROPERTY TAXES UPON THE BASIS OF THE MOST RECENT TAX BILLS AND INFORMATION AVAILABLE, SECURITY DEPOSITS, AND SIMILAR PREPAID AND DEFERRED ITEMS. ON THE CLOSING DATE, THE PRO-RATIONS SHALL, INSOFAR AS FEASIBLE, BE DETERMINED AND PAID ON THE CLOSING DATE, WITH FINAL SETTLEMENT AND PAYMENT TO BE MADE WITHIN FORTY-FIVE (45) DAYS AFTER THE CLOSING DATE.

3.4ALLOCATION. ON OR BEFORE THE CLOSING DATE, SELLER AND BUYER SHALL MUTUALLY DETERMINE AN ALLOCATION OF PURCHASE PRICE AMONG THE ASSETS THAT COMPLIES WITH SECTION 1060 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.

ARTICLE 4
GOVERNMENTAL CONSENTS
4.1FCC CONSENT. IT IS SPECIFICALLY UNDERSTOOD AND AGREED BY BUYER AND SELLER THAT CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY IS EXPRESSLY CONDITIONED ON AND IS SUBJECT TO THE PRIOR CONSENT AND APPROVAL OF THE FCC (FCC CONSENT) WITHOUT THE IMPOSITION OF ANY CONDITIONS THAT MIGHT BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE RESULTS OF OPERATIONS OF THE STATION OR WITH RESPECT TO BUYER.
4.2FCC APPLICATION. WITHIN FIVE (5) BUSINESS DAYS AFTER EXECUTION OF THIS AGREEMENT, THE PARTIES SHALL FILE WITH THE FCC AN APPLICATION FOR ASSIGNMENT OF THE FCC LICENSES (FCC APPLICATION) FROM SELLER TO BUYER. THE PARTIES SHALL THEREAFTER USE ALL REASONABLE EFFORTS TO OBTAIN THE GRANT OF THE FCC APPLICATION AS EXPEDITIOUSLY AS PRACTICABLE. IF THE FCC CONSENT IMPOSES ANY CONDITION ON A PARTY HERETO, SUCH PARTY SHALL USE REASONABLE EFFORTS TO COMPLY WITH SUCH CONDITION; PROVIDED, HOWEVER, THAT NO PARTY SHALL BE REQUIRED HEREUNDER TO COMPLY WITH ANY CONDITION THAT WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE RESULTS OF OPERATIONS OF SUCH PARTY OR ANY AFFILIATED ENTITY. IF RECONSIDERATION OR JUDICIAL REVIEW IS SOUGHT WITH RESPECT TO THE FCC CONSENT, THE PARTY AFFECTED SHALL VIGOROUSLY OPPOSE SUCH EFFORTS FOR RECONSIDERATION OR JUDICIAL REVIEW; PROVIDED, HOWEVER, SUCH PARTY SHALL NOT BE REQUIRED TO TAKE ANY ACTION WHICH WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE RESULTS OF OPERATIONS OF SUCH PARTY OR ANY AFFILIATED ENTITY. NOTHING IN THIS SECTION 4.2 SHALL BE CONSTRUED TO LIMIT A PARTYS RIGHT TO TERMINATE THIS AGREEMENT PURSUANT TO ARTICLE 13 HEREOF.
4.3RENEWAL APPLICATION. SELLER HAS TIMELY FILED AN APPLICATION FOR RENEWAL OF THE STATIONS FCC AUTHORIZATIONS [BRTTA-20040730ABQ] (THE RENEWAL APPLICATION).
ARTICLE 5
CLOSING
5.1CLOSING. EXCEPT AS OTHERWISE MUTUALLY AGREED UPON BY SELLER AND BUYER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN (THE CLOSING) SHALL OCCUR WITHIN TEN (10) BUSINESS DAYS AFTER THE FCC CONSENT SHALL HAVE BECOME A FINAL ORDER (AS HEREINAFTER DEFINED) (THE CLOSING DATE). AS USED HEREIN, THE TERM FINAL ORDER MEANS A WRITTEN ACTION OR ORDER ISSUED BY THE FCC SETTING FORTH THE FCC CONSENT (A) WHICH HAS NOT BEEN REVERSED, STAYED, ENJOINED, SET ASIDE, ANNULLED OR SUSPENDED, AND (B) WITH RESPECT TO WHICH (I) NO REQUESTS HAVE BEEN FILED FOR ADMINISTRATIVE OR JUDICIAL REVIEW, RECONSIDERATION, APPEAL OR STAY, AND THE TIME FOR FILING ANY SUCH REQUESTS AND FOR THE FCC TO SET ASIDE THE ACTION ON ITS OWN MOTION (WHETHER UPON RECONSIDERATION OR OTHERWISE) HAS EXPIRED, OR (II) IN THE EVENT OF REVIEW, RECONSIDERATION OR APPEAL, THE TIME FOR FURTHER REVIEW, RECONSIDERATION OR APPEAL HAS EXPIRED. NOTWITHSTANDING THE FOREGOING, BUYER, AT ITS SOLE OPTION, MAY ELECT TO PROCEED WITH THE CLOSING UPON PUBLIC NOTICE OF THE GRANT OF FCC CONSENT BUT PRIOR TO THE DATE ON WHICH THE FCC CONSENT SHALL HAVE BECOME A FINAL ORDER, UPON TEN (10) DAYS WRITTEN NOTICE TO SELLER. ALL ACTIONS TAKEN AT THE CLOSING WILL BE CONSIDERED AS HAVING BEEN TAKEN SIMULTANEOUSLY, AND NO SUCH ACTIONS WILL BE CONSIDERED TO BE COMPLETED UNTIL ALL SUCH ACTIONS HAVE BEEN COMPLETED. THE CLOSING SHALL BE HELD AT SUCH PLACE AS THE PARTIES HERETO MAY AGREE.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SELLER
6.1AUTHORITY. SELLER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF FLORIDA. SELLERS EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON ITS PART. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY SELLER AND THIS AGREEMENT CONSTITUTES, AND THE OTHER AGREEMENTS TO BE EXECUTED IN CONNECTION HEREWITH WILL CONSTITUTE, THE VALID AND BINDING OBLIGATION OF SELLER, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
6.2NO CONFLICT.THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY SELLER WILL NOT (I) CONFLICT WITH, OR RESULT IN A VIOLATION OF, ANY PROVISION OF THE ARTICLES OF INCORPORATION OF SELLER; (II) CONSTITUTE OR RESULT IN A BREACH OF OR DEFAULT (OR AN EVENT WHICH WITH NOTICE OR LAPSE OF TIME, OR BOTH, WOULD CONSTITUTE A DEFAULT) UNDER, OR RESULT IN THE TERMINATION OR SUSPENSION OF, OR ACCELERATE THE PERFORMANCE REQUIRED BY, OR RESULT IN A RIGHT OF TERMINATION, CANCELLATION OR ACCELERATION OF ANY CONTRACT, LEASE OR ANY OTHER MATERIAL AGREEMENT, INDENTURE, COVENANT, INSTRUMENT, LICENSE OR PERMIT BY WHICH SELLER IS BOUND OR ANY OF THE ASSETS MAY BE SUBJECT, INCLUDING, WITHOUT LIMITATION, ANY CONTRACT, ANY EXCLUDED CONTRACT, OR ANY EXCLUDED LEASE, (III) VIOLATE ANY LAW, STATUTE, RULE, REGULATION, ORDER, WRIT, INJUNCTION OR DECREE OF ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY OR AGENCY AND WHICH IS APPLICABLE TO SELLER OR ANY OF THE ASSETS, (IV) RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE OF ANY NATURE WHATSOEVER ON ANY OF THE ASSETS, OR (V) REQUIRE THE CONSENT OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY, LENDING INSTITUTION OR OTHER THIRD PARTY OTHER THAN THE FCC CONSENT.
6.3AUTHORIZATIONS. SCHEDULE 1.1(A) HERETO CONTAINS A TRUE AND COMPLETE LIST OF THE AUTHORIZATIONS (ALSO REFERRED TO HEREIN AS THE FCC LICENSES). SELLER IS THE AUTHORIZED LEGAL HOLDER OF THE AUTHORIZATIONS. THE AUTHORIZATIONS ARE VALIDLY ISSUED, IN GOOD STANDING AND IN FULL FORCE AND EFFECT. THE AUTHORIZATIONS ARE ALL OF THE LICENSES, PERMITS OR OTHER AUTHORIZATIONS FROM GOVERNMENTAL AND REGULATORY AUTHORITIES NECESSARY TO OPERATE THE STATION. NONE OF THE LICENSES, PERMITS AND AUTHORIZATIONS LISTED ON SCHEDULE 1.1(A) IS SUBJECT TO ANY RESTRICTIONS OR CONDITIONS THAT WOULD LIMIT IN ANY MATERIAL RESPECT THE OPERATIONS OF THE STATION. EXCEPT AS SET FORTH IN SCHEDULE 1.1(A), SELLER HAS OPERATED AND IS OPERATING THE STATION IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE FCC AUTHORIZATIONS, AND ALL RULES, REGULATIONS AND POLICIES OF THE FCC (THE 'COMMUNICATIONS LAWS'). THE STATION HAS BEEN GRANTED SPECIAL TEMPORARY AUTHORITY [BRSTA-20040528AWF] (THE STA) TO REMAIN SILENT, AS OF MAY 23, 2004. THE STATION HAS ALSO BEEN GRANTED A CONSTRUCTION PERMIT [BPTTA-20040505ABI] (THE CP) FOR FACILITIES AT A LOCATION AND FOR PARAMETERS DIFFERENT THAN THE CURRENT FCC LICENSE. BUYER ACKNOWLEDGES THAT, AS OF THE CLOSING DATE, THE STATION WILL NOT BE BROADCASTING A SIGNAL, AND SELLER WILL NOT HAVE CONSTRUCTED NEW FACILITIES AS AUTHORIZED BY THE CP. THERE IS NOT NOW PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED ANY ACTION BY OR BEFORE THE FCC TO REVOKE, CANCEL, RESCIND, MODIFY OR REFUSE TO RENEW ANY OF SUCH FCC AUTHORIZATIONS, SELLER HAS NOT RECEIVED ANY NOTICE OF AND HAS NO KNOWLEDGE OF ANY PENDING, ISSUED OR OUTSTANDING ORDER BY OR BEFORE THE FCC, OR OF ANY INVESTIGATION, ORDER TO SHOW CAUSE, NOTICE OF VIOLATION, NOTICE OF APPARENT LIABILITY, NOTICE OF FORFEITURE, OR MATERIAL COMPLAINT AGAINST EITHER THE STATION OR SELLER, AND TO SELLERS KNOWLEDGE, THERE IS NO FACTUAL OR LEGAL BASIS FOR ANY SUCH FCC ACTION OR PROCEEDING TO BE INSTITUTED. EXCEPT AS SET FORTH IN SCHEDULE 1.1(A), ALL MATERIAL REPORTS AND FILINGS REQUIRED TO BE FILED WITH THE FCC BY SELLER WITH RESPECT TO THE OPERATIONS OF THE STATION HAVE BEEN TIMELY FILED, AND ALL SUCH REPORTS AND FILINGS ARE ACCURATE AND COMPLETE IN ALL MATERIAL RESPECTS.
6.4TANGIBLE PERSONAL PROPERTY.   SCHEDULE 1.1(C) HERETO CONTAINS A TRUE AND COMPLETE LIST OF THE TANGIBLE PERSONAL PROPERTY. THE TANGIBLE PERSONAL PROPERTY WHICH IS LEASED IS IDENTIFIED AS SUCH ON SCHEDULE 1.1(C). THE TANGIBLE PERSONAL PROPERTY IS ALL OF THE TANGIBLE PERSONAL PROPERTY NECESSARY TO OPERATE THE STATION IN THE MANNER IN WHICH IT IS PRESENTLY OPERATED. SELLER (I) IS THE LAWFUL OWNER OF ALL OF THE TANGIBLE PERSONAL PROPERTY IT PURPORTS TO OWN, (II) HAS VALID LEASEHOLD INTERESTS IN THE TANGIBLE PERSONAL PROPERTY IT PURPORTS TO LEASE, IN ALL CASES FREE AND CLEAR OF ANY LIENS, EXCEPT FOR LIENS DISCLOSED IN SCHEDULE 1.1(C) ATTACHED HERETO, WHICH SHALL BE DISCHARGED AT CLOSING AS TO ALL OWNED TANGIBLE PERSONAL PROPERTY, AND EXCEPT FOR PERMITTED LIENS. EXCEPT AS SET FORTH ON SCHEDULE 1.1(C), AS OF THE DATE HEREOF, EACH ITEM OF TANGIBLE PERSONAL PROPERTY OWNED BY SELLER IS IN GOOD REPAIR AND CONDITION, ORDINARY WEAR AND TEAR EXCEPTED, HAS BEEN MAINTAINED IN ACCORDANCE WITH INDUSTRY PRACTICE, AND IS AVAILABLE FOR IMMEDIATE USE IN THE BUSINESS AND OPERATIONS OF THE STATION.
6.5CONTRACTS. SCHEDULE 1.1(D) HERETO CONTAINS A TRUE AND COMPLETE LIST OF ALL CONTRACTS THAT ARE TO BE CONVEYED TO BUYER AT THE CLOSING AND ALL EXCLUDED CONTRACTS. SELLER IS NOT IN VIOLATION OR BREACH OF, NOR HAS SELLER RECEIVED IN WRITING ANY CLAIM OR THREAT THAT IT HAS BREACHED ANY OF THE TERMS AND CONDITIONS OF, ANY CONTRACT OR EXCLUDED CONTRACT. NEITHER SELLER NOR, TO SELLER'S KNOWLEDGE, ANY OTHER PARTY TO ANY CONTRACT OR EXCLUDED CONTRACT IS IN DEFAULT THEREUNDER OR BREACH THEREOF. SELLER HAS DELIVERED TO BUYER A TRUE, ACCURATE AND COMPLETE COPY OF EACH CONTRACT AND EXCLUDED CONTRACT, INCLUDING ALL AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS THERETO OR WAIVERS THEREUNDER. EXCEPT AS SET FORTH ON SCHEDULE 1.1(D) ATTACHED HERETO, NEITHER THE EXECUTION AND DELIVERY BY SELLER OF THIS AGREEMENT NOR THE CONSUMMATION BY SELLER OF THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT REQUIRES THE CONSENT OF ANY PARTY TO A CONTRACT OR ANY OTHER AGREEMENT OR OBLIGATION OF SELLER, WHETHER OR NOT SUCH AGREEMENT OR OBLIGATION IS TO BE ASSIGNED TO OR ASSUMED BY BUYER, AND ANY MATERIAL CONTRACT REQUIRING CONSENT TO ASSIGNMENT BY A THIRD PARTY IS IDENTIFIED ON SCHEDULE 1.1(D) WITH AN ASTERISK.
6.6COMPLIANCE WITH LAW. TO THE BEST OF SELLERS KNOWLEDGE, AND EXCEPT AS SET FORTH ON SCHEDULE 1.1(A) OF THIS AGREEMENT, THE ACQUIRED ASSETS AND THE SELLERS OPERATION AND OWNERSHIP OF THE STATION ARE IN COMPLIANCE WITH ALL APPLICABLE STATUTES, LAWS, ORDINANCES, REGULATIONS, RULES OR ORDERS OF ANY FEDERAL, STATE OR LOCAL GOVERNMENT.
6.7LITIGATION. THERE ARE NO CLAIMS, ACTIONS, SUITS, LITIGATION, LABOR DISPUTES, ARBITRATIONS, PROCEEDINGS OR INVESTIGATIONS PENDING OR, TO THE BEST KNOWLEDGE OF SELLER, THREATENED AGAINST OR AFFECTING SELLER, THE ACQUIRED ASSETS OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. SELLER IS NOT SUBJECT TO ANY ORDER, JUDGMENT, WRIT, INJUNCTION OR DECREE OF ANY COURT OR GOVERNMENTAL AGENCY OR ENTITY WITH RESPECT TO THE STATION OR THE ACQUIRED ASSETS.
6.8TAXES. SELLER HAS PAID ALL TAXES REQUIRED TO BE PAID BY SELLER WITH RESPECT TO THE STATION. THERE ARE NO PENDING OR, TO THE BEST KNOWLEDGE OF SELLER, THREATENED, INVESTIGATIONS OR CLAIMS AGAINST SELLER FOR OR RELATING TO ANY LIABILITY IN RESPECT OF TAXES AND, TO THE BEST KNOWLEDGE OF SELLER, NO FACTS OR CIRCUMSTANCES EXIST WHICH INDICATE THAT ANY SUCH INVESTIGATIONS OR CLAIMS IN RESPECT OF TAXES MAY BE BROUGHT OR ARE UNDER DISCUSSION WITH ANY GOVERNMENTAL AUTHORITIES. ALL TAXES REQUIRED TO BE WITHHELD BY SELLER ON OR BEFORE THE DATE HEREOF HAVE BEEN WITHHELD AND PAID WHEN DUE TO THE APPROPRIATE AGENCY OR AUTHORITY.
6.9DISCLOSURE. THE REPRESENTATIONS AND WARRANTIES OF SELLER HEREIN OR IN ANY DOCUMENT, EXHIBIT, STATEMENT, CERTIFICATE OR SCHEDULE FURNISHED BY OR ON BEHALF OF SELLER TO BUYER AS REQUIRED BY THIS AGREEMENT DO NOT CONTAIN NOR WILL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT OR WILL OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS HEREIN OR THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. FROM THE DATE OF THIS AGREEMENT, THROUGH THE CLOSING DATE, SELLER SHALL ADVISE BUYER IN WRITING IMMEDIATELY OF ALL CHANGES, IF ANY, IN CIRCUMSTANCES THAT WOULD CAUSE ANY REPRESENTATION, WARRANTY OR STATEMENT CONTAINED HEREIN TO BE INACCURATE OR WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE STATION.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF BUYER
BUYER REPRESENTS AND WARRANTS TO SELLER AS FOLLOWS:
7.1ORGANIZATION AND STANDING. BUYER IS A CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF DELAWARE AND HAS THE REQUISITE CORPORATE POWER TO CARRY ON ITS BUSINESS AS IT IS NOW BEING CONDUCTED.
7.2AUTHORITY. BUYERS EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN DULY AND VALIDLY AUTHORIZED BY ALL NECESSARY ACTION ON ITS PART. THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY BUYER AND UPON OBTAINING ALL NECESSARY APPROVALS OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THIS AGREEMENT WILL CONSTITUTE, AND THE OTHER AGREEMENTS TO BE EXECUTED IN CONNECTION HEREWITH WILL CONSTITUTE, THE VALID AND BINDING OBLIGATION OF BUYER, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS.
7.3LITIGATION. THERE ARE NO CLAIMS, ACTIONS, SUITS, LITIGATION, LABOR DISPUTES, ARBITRATIONS, PROCEEDINGS OR INVESTIGATIONS PENDING OR, TO THE BEST KNOWLEDGE OF BUYER, THREATENED AGAINST BUYER RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
7.4FINANCIAL CAPABILITY. BUYER HAS ON HAND OR FROM COMMITTED SOURCES THE FUNDS NECESSARY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT..
7.5DISCLOSURE. THE REPRESENTATIONS AND WARRANTIES OF BUYER HEREIN OR IN ANY DOCUMENT, EXHIBIT, STATEMENT, CERTIFICATE OR SCHEDULE FURNISHED BY OR ON BEHALF OF BUYER TO SELLER AS REQUIRED BY THIS AGREEMENT DO NOT CONTAIN NOR WILL CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT OR WILL OMIT TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS HEREIN OR THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
ARTICLE 8
SELLER COVENANTS
8.1OPERATION OF BUSINESS. BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING DATE, SELLER SHALL MAINTAIN AND PRESERVE SELLERS RIGHTS UNDER THE AUTHORIZATIONS AND OPERATE THE STATION IN THE ORDINARY COURSE OF BUSINESS, IN ACCORDANCE WITH PAST PRACTICE. IN PARTICULAR, WITHOUT LIMITATION, SELLER SHALL:
(A)USE COMMERCIALLY REASONABLY EFFORTS TO PRESERVE AND PROTECT ALL OF THE STATION ASSETS IN GOOD REPAIR AND CONDITION, NORMAL WEAR AND TEAR EXCEPTED, AND MAINTAIN SUCH STATION ASSETS ACCORDING TO INDUSTRY STANDARDS, GOOD ENGINEERING PRACTICES AND ALL APPLICABLE FCC RULES;
(B)MAINTAIN AND PRESERVE SELLER'S RIGHTS UNDER THE FCC LICENSES, OPERATE THE STATION IN ACCORDANCE WITH THE ACT, THE FCC RULES AND THE FCC LICENSES, TIMELY FILE AND PROSECUTE ANY REQUIRED EXTENSIONS OF OUTSTANDING CONSTRUCTION PERMITS, APPLICATIONS OR AUTHORIZATIONS WHICH MAY EXPIRE PRIOR TO THE CLOSING DATE, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE STA AND THE RENEWAL APPLICATION;
(C) AND SELLER SHALL NOT:
(I)PLACE OR ALLOW TO BE PLACED ON ANY OF THE STATION ASSETS ANY LIEN OTHER THAN A PERMITTED LIEN;
(II) SELL OR OTHERWISE DISPOSE OF ANY MATERIAL STATION ASSET;
(III) COMMIT ANY ACT OR OMIT TO DO ANY ACT WHICH WILL CAUSE A BREACH OF ANY MATERIAL CONTRACT OR TERMINATE OR FAIL TO RENEW ANY MATERIAL CONTRACT;
(IV)VIOLATE IN ANY MATERIAL RESPECT ANY LAW, STATUTE, RULE, GOVERNMENTAL REGULATION OR ORDER OF ANY COURT OR GOVERNMENTAL OR REGULATORY AUTHORITY (WHETHER FEDERAL, STATE OR LOCAL); OR
(V)CAUSE OR PERMIT BY ANY ACT, OR FAILURE TO ACT, ANY OF THE FCC LICENSES TO EXPIRE, BE SURRENDERED, ADVERSELY MODIFIED, OR OTHERWISE TERMINATED, OR THE FCC TO INSTITUTE ANY PROCEEDINGS FOR THE SUSPENSION, REVOCATION OR ADVERSE MODIFICATION OF ANY OF THE FCC LICENSES, OR FAIL TO PROSECUTE WITH DUE DILIGENCE ANY PENDING APPLICATIONS TO THE FCC.
8.2CONTRACTS. BETWEEN THE DATE OF THIS AGREEMENT AND THE CLOSING DATE, SELLER SHALL NOT ENTER INTO ANY CONTRACT OR COMMITMENT RELATING TO THE STATION OR THE ACQUIRED ASSETS OR INCUR ANY OTHER OBLIGATION WITH RESPECT TO THE STATION OR THE ACQUIRED ASSETS WITHOUT OBTAINING BUYERS PRIOR WRITTEN CONSENT.
8.3LIEN SEARCH. SELLER SHALL DELIVER TO BUYER LIEN SEARCH REPORTS (THE LIEN SEARCH), IN FORM AND SUBSTANCE SATISFACTORY TO BUYER AND DATED NO EARLIER THAN 30 DAYS PRIOR TO THE CLOSING, REFLECTING THE RESULTS OF UCC, TAX AND JUDGMENT LIEN SEARCHES CONDUCTED AT SECRETARY OF STATE OFFICE OF THE STATE OF FLORIDA AND THE STATE OF NORTH CAROLINA, AND IN THE COUNTY CLERK'S OFFICE OF EACH COUNTY IN WHICH THE ASSETS ARE LOCATED, DEMONSTRATING THAT THE ACQUIRED ASSETS ARE FREE AND CLEAR OF ALL LIENS EXCEPT LIENS THAT ARE TO BE RELEASED ON OR BEFORE THE CLOSING DATE.
ARTICLE 9
CONDITIONS
9.1CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. THE OBLIGATIONS OF BUYER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS, EXCEPT TO THE EXTENT BUYER SHALL HAVE WAIVED IN WRITING SATISFACTION OF SUCH CONDITION:
(A)THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND ON THE CLOSING DATE AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES WERE MADE ON SUCH DATE.
(B)SELLER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS, REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH PRIOR TO THE CLOSING.
(C)SELLER SHALL HAVE DELIVERED TO BUYER ALL OF THE DOCUMENTS REQUIRED BY SECTION 10.1 HEREOF.
(D)THE FCC CONSENT SHALL HAVE BECOME A FINAL ORDER.
(E)THE CP SHALL BE EFFECTIVE.
(F)BUYER SHALL PROMPTLY AFTER THE DATE HEREOF COMMENCE NEGOTIATIONS IN GOOD FAITH TO ENTER INTO, AND SHALL HAVE AGREED TO THE FORM OF A   REAL PROPERTY LEASE ON OR BEFORE OCTOBER 15, 2004 FOR THE FACILITIES SPECIFIED IN THE CP ON COMMERCIALLY REASONABLE TERMS ACCEPTABLE TO BUYER, AND IF THE CONDITION SET FORTH HEREIN IS NOT SATISFIED AS OF OCTOBER 15, 2004, THEN BUYER SHALL EITHER WAIVE SAID CONDITION OR BUYER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO SELLER DELIVERED ON OR BEFORE OCTOBER 15, 2004, WITHOUT FURTHER OBLIGATION BY EITHER PARTY, PROVIDED, THAT BUYER SHALL BE ENTITLED TO PROMPT RETURN OF THE EARNEST MONEY DEPOSIT.
(G)THE RENEWAL APPLICATION SHALL HAVE BEEN GRANTED BY THE FCC WITH NO CONDITION MATERIALLY ADVERSE TO BUYER.
9.2CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. THE OBLIGATIONS OF SELLER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE SUBJECT TO THE FULFILLMENT, PRIOR TO OR AT THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS, EXCEPT TO THE EXTENT SELLER SHALL HAVE WAIVED IN WRITING SATISFACTION OF SUCH CONDITION:
(A)THE REPRESENTATIONS AND WARRANTIES MADE BY BUYER IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE OF THIS AGREEMENT AND ON THE CLOSING DATE AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES WERE MADE ON SUCH DATE.
(B)BUYER SHALL HAVE PERFORMED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS, AGREEMENTS, REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR COMPLIED WITH BY IT PRIOR TO THE CLOSING.
(C)BUYER SHALL HAVE DELIVERED TO SELLER ALL OF THE DOCUMENTS REQUIRED BY SECTION 10.2 HEREOF.
(D)THE FCC CONSENT SHALL BE EFFECTIVE.
ARTICLE 10
CLOSING DELIVERIES
10.1SELLERS DELIVERIES. AT THE CLOSING, SELLER SHALL DELIVER OR CAUSE TO BE DELIVERED TO BUYER THE FOLLOWING:
(A)A BILL OF SALE, ASSIGNMENT AND ASSUMPTION OF FCC AUTHORIZATIONS, ASSIGNMENT AND ASSUMPTION OF CONTRACTS, AND SUCH OTHER ASSIGNMENTS AND INSTRUMENTS OF CONVEYANCE, TRANSFER AND ASSIGNMENT, ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO COUNSEL FOR BUYER, AS SHALL BE EFFECTIVE TO VEST IN BUYER OR ITS PERMITTED ASSIGNEE, GOOD AND MARKETABLE TITLE IN AND TO THE ACQUIRED ASSETS (THE CONVEYANCE DOCUMENTS);
(B)CONSENTS TO ASSIGNMENT FOR EACH MATERIAL CONTRACT, AS REQUIRED;
(C)A CERTIFICATE, EXECUTED BY AN OFFICER OF SELLER IN SUCH DETAIL AS BUYER SHALL REASONABLY REQUEST, CERTIFYING TO THE FULFILLMENT OR SATISFACTION OF THE CONDITIONS SET FORTH IN SECTION 9.1. THE DELIVERY OF SUCH CERTIFICATE SHALL CONSTITUTE A REPRESENTATION AND WARRANTY OF SELLER AS TO THE STATEMENTS SET FORTH THEREIN;
(D)A NOTICE TO THE ESCROW AGENT, EXECUTED BY SELLER;
(E)UPDATED SCHEDULES REFLECTING ANY CHANGES NECESSARY TO RENDER THE INFORMATION CONTAINED THEREIN TRUE AND ACCURATE ON THE CLOSING DATE;
(F)PAYOFF LETTERS FROM ANY PARTY HOLDING A LIEN TO BE RELEASED AT THE CLOSING, AND RELEASES OR UCC-3 TERMINATION STATEMENTS SUFFICIENT TO TERMINATE LIENS; AND
(G)ORIGINALS OR COPIES OF ALL RECORDS REQUIRED TO BE MAINTAINED BY THE FCC WITH RESPECT TO THE STATION.
10.2BUYERS DELIVERIES. AT THE CLOSING, BUYER SHALL DELIVER OR CAUSE TO BE DELIVERED TO SELLER THE FOLLOWING:
(A)THE PAYMENT REQUIRED UNDER SECTION 3.1 HEREOF;
(B)A NOTICE TO THE ESCROW AGENT EXECUTED BY BUYER;
(C)THE CONVEYANCE DOCUMENTS IN WHICH BUYER ASSUMES AN OBLIGATION; AND
(D)A CERTIFICATE, EXECUTED BY AN OFFICER OF BUYER, IN SUCH DETAIL AS SELLER SHALL REASONABLY REQUEST, CERTIFYING TO THE FULFILLMENT OR SATISFACTION BY BUYER OF THE CONDITIONS SET FORTH IN SECTION 9.2. THE DELIVERY OF SUCH CERTIFICATE SHALL CONSTITUTE A REPRESENTATION AND WARRANTY OF BUYER AS TO THE STATEMENTS SET FORTH THEREIN.
ARTICLE 11
TRANSFER TAXES, FEES AND EXPENSES
11.1EXPENSES. EXCEPT AS SET FORTH IN SECTION 11.2 AND 11.3 HEREOF, EACH PARTY HERETO SHALL BE SOLELY RESPONSIBLE FOR ALL COSTS AND EXPENSES INCURRED BY IT IN CONNECTION WITH THE NEGOTIATION AND PREPARATION OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY.
11.2TRANSFER TAXES AND SIMILAR CHARGES. SELLER AND BUYER SHALL EACH PAY 50% OF THE AMOUNT OF ANY AND ALL RECORDING, EXCISE, SALES OR USE TAXES IMPOSED BY REASON OF THE TRANSFER OF THE ACQUIRED ASSETS IN ACCORDANCE WITH THIS AGREEMENT.
11.3GOVERNMENTAL FILING OR GRANT FEES. ANY FILING OR GRANT FEES IMPOSED BY ANY GOVERNMENTAL AUTHORITY THE CONSENT OF WHICH IS REQUIRED TO THE TRANSACTIONS TO BE COMPLETED AS OF THE CLOSING SET FORTH IN SECTION 5.1 OF THIS AGREEMENT, SPECIFICALLY INCLUDING WITH RESPECT TO THE FCC APPLICATION, SHALL BE BORNE EQUALLY BY BUYER AND SELLER.
ARTICLE 12
INDEMNIFICATION
12.1SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT SHALL SURVIVE THE CLOSING FOR A PERIOD OF TWO YEARS FROM THE CLOSING DATE. THE RIGHT OF ANY PARTY TO RECOVER DAMAGES (AS DEFINED IN SECTION 12.2 HEREOF) ON ANY CLAIM SHALL NOT BE AFFECTED BY THE TERMINATION OF ANY REPRESENTATIONS AND WARRANTIES AS SET FORTH ABOVE PROVIDED THAT NOTICE OF THE EXISTENCE OF SUCH CLAIM HAS BEEN GIVEN BY THE INDEMNIFIED PARTY (AS HEREINAFTER DEFINED) TO THE INDEMNIFYING PARTY (AS HEREINAFTER DEFINED) PRIOR TO SUCH TERMINATION.
12.2INDEMNIFICATION OF BUYER BY SELLER. SELLER SHALL INDEMNIFY AND HOLD BUYER AND ITS ATTORNEYS, AFFILIATES, REPRESENTATIVES, AGENTS, OFFICERS, DIRECTORS, SUCCESSORS OR ASSIGNS HARMLESS FROM AND AGAINST ANY LIABILITY, LOSS, COST, EXPENSE, JUDGMENT, ORDER, SETTLEMENT, OBLIGATION, DEFICIENCY, CLAIM, SUIT, PROCEEDING (WHETHER FORMAL OR INFORMAL), INVESTIGATION, LIEN OR OTHER DAMAGE, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES AND EXPENSES, (ALL OF THE FOREGOING ITEMS FOR PURPOSES OF THIS AGREEMENT ARE REFERRED TO AS DAMAGES), RESULTING FROM, ARISING OUT OF OR INCURRED WITH RESPECT TO:
(A)A BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT OF SELLER CONTAINED HEREIN, SUBJECT TO NOTICE OF A CLAIM BEING GIVEN BEFORE THE EXPIRATION OF THE APPLICABLE PERIOD SPECIFIED IN SECTION 12.1 HEREOF WITH RESPECT TO THE REPRESENTATIONS OR WARRANTIES BY SELLER CONTAINED HEREIN;
(B)THE RETAINED LIABILITIES; OR
(C)ANY AND ALL CLAIMS, LIABILITIES OR OBLIGATIONS OF ANY NATURE, ABSOLUTE OR CONTINGENT, RELATING TO THE BUSINESS OR OPERATION OF THE STATION AND THE ACQUIRED ASSETS PRIOR TO THE CLOSING DATE.
THE TERM DAMAGES AS USED IN THIS AGREEMENT IS NOT LIMITED TO MATTERS ASSERTED BY THIRD-PARTIES AGAINST A PARTY, BUT INCLUDES DAMAGES INCURRED OR SUSTAINED BY A PARTY IN THE ABSENCE OF THIRD- PARTY CLAIMS.
12.3INDEMNIFICATION OF SELLER. BUYER SHALL INDEMNIFY AND HOLD SELLER AND ITS ATTORNEYS, AFFILIATES, REPRESENTATIVES, AGENTS, OFFICERS, DIRECTORS, SUCCESSORS OR ASSIGNS, HARMLESS FROM AND AGAINST ANY DAMAGES RESULTING FROM, ARISING OUT OF, OR INCURRED WITH RESPECT TO:
(A)A MATERIAL BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT BY BUYER CONTAINED HEREIN, SUBJECT TO NOTICE OF A CLAIM BEING GIVEN BEFORE THE EXPIRATION OF THE APPLICABLE PERIOD SPECIFIED IN SECTION 12.1 HEREOF WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES MADE BY BUYER HEREIN; OR
(B)ANY AND ALL CLAIMS, LIABILITIES OR OBLIGATIONS OF ANY NATURE, ABSOLUTE OR CONTINGENT, RELATING TO THE BUSINESS AND OPERATION OF THE STATION AND THE ACQUIRED ASSETS AS CONDUCTED BY BUYER ON AND AFTER THE CLOSING DATE.
ARTICLE 13
TERMINATION RIGHTS
13.1TERMINATION. THIS AGREEMENT MAY BE TERMINATED, BY WRITTEN NOTICE GIVEN BY ANY PARTY (PROVIDED SUCH PARTY IS NOT IN BREACH OF ANY OF ITS OBLIGATIONS, REPRESENTATIONS, WARRANTIES OR DUTIES HEREUNDER) TO THE OTHER PARTY HERETO, AT ANY TIME

Attachment 11