Exhibit 10.46
ASSETS PURCHASE AGREEMENT
by and among
CLEAR CHANNEL BROADCASTING, INC.
and
CLEAR CHANNEL BROADCASTING LICENSES, INC.
and
RADIO ONE, INC.
Concerning the Sale of
Radio Stations
XXXX-FM and WERE(AM),
Cleveland, Ohio
TABLE OF CONTENTS
Page
ARTICLE 1 PURCHASE OF ASSETS
1.1 TRANSFER OF ASSETS............................................... 2
1.2 EXCLUDED ASSETS.................................................. 2
1.3 APPORTIONMENT OF CONTRACTS....................................... 3
1.4 RETAINED PORTION OF WERE(AM) TOWER SITE.......................... 4
1.4.1 SUBDIVISION OF WERE TOWER PROPERTY......................... 4
1.4.2 PROCEDURE FOR SUBDIVISION.................................. 5
ARTICLE 2 ASSUMPTION OF OBLIGATIONS................................... 5
2.1 ASSUMPTION OF OBLIGATIONS........................................ 5
2.2 RETAINED LIABILITIES............................................. 5
ARTICLE 3 CONSIDERATION............................................... 6
3.1 DELIVERY OF CONSIDERATION........................................ 6
3.2 ESCROW DEPOSIT................................................... 6
3.3 PRORATION OF INCOME AND EXPENSES; TRADE AGREEMENTS ADJUSTMENT
3.4 ALLOCATION OF PURCHASE PRICE..................................... 7
ARTICLE 4 CLOSING..................................................... 7
4.1 CLOSING.......................................................... 8
4.2 UNWIND........................................................... 8
ARTICLE 5 GOVERNMENTAL CONSENTS....................................... 8
5.1 FCC CONSENT AND DEPARTMENT OF JUSTICE CONSENT.................... 8
5.2 FCC APPLICATION.................................................. 8
5.3 HSR APPLICATION.................................................. 9
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BUYER..................... 9
6.1 ORGANIZATION AND STANDING........................................ 9
6.2 AUTHORIZATION AND BINDING OBLIGATION............................. 9
6.3 QUALIFICATION.................................................... 10
6.4 ABSENCE OF CONFLICTING AGREEMENTS OF REQUIRED CONSENTS........... 10
6.5 LITIGATION....................................................... 10
6.6 COMMISSIONS OR FINDER'S FEES..................................... 10
6.7 AVAILABILITY OF FUNDS............................................ 10
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF SELLER.................... 10
7.1 ORGANIZATION AND STANDING........................................ 11
7.2 AUTHORIZATION AND BINDING OBLIGATION............................. 11
7.3 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS........... 11
7.4 GOVERNMENT AUTHORIZATIONS........................................ 11
7.5. COMPLIANCE WITH FCC REGULATIONS................................. 12
7.6 TAXES............................................................ 12
7.7 PERSONAL PROPERTY................................................ 12
7.8 REAL PROPERTY.................................................... 12
7.9 CONTRACTS........................................................ 14
7.10 STATUS OF CONTRACTS, ETC........................................ 14
7.11 ENVIRONMENTAL................................................... 14
7.12 INTELLECTUAL PROPERTY........................................... 14
7.13 PERSONNEL INFORMATION........................................... 14
Page
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7.14 LITIGATION..................................................... 15
7.15 COMMISSIONS OR FINDER'S FEES................................... 15
7.16 INSURANCE...................................................... 15
7.17 COMPLIANCE WITH LAWS........................................... 15
7.18 FINANCIAL INFORMATION.......................................... 16
ARTICLE 8 COVENANTS OF BUYER......................................... 16
8.1 CLOSING......................................................... 16
8.2 NOTIFICATION.................................................... 16
8.3 NO INCONSISTENT ACTION.......................................... 16
8.4 ACCOUNTS RECEIVABLE............................................. 16
ARTICLE 9 COVENANTS OF SELLER........................................ 17
9.1 SELLER'S PRE-CLOSING COVENANTS.................................. 17
9.2 NOTIFICATION.................................................... 19
9.3 NO INCONSISTENT ACTION.......................................... 19
9.4 CLOSING......................................................... 19
9.5 COOPERATION WITH RESPECT TO FINANCIAL INFORMATION............... 19
ARTICLE 10 JOINT COVENANTS........................................... 19
10.1 CONFIDENTIALITY................................................ 19
10.2 COOPERATION.................................................... 20
10.3 CONTROL OF STATIONS............................................ 21
10.4 CONSENTS TO ASSIGNMENT......................................... 21
10.5 FILINGS........................................................ 21
10.6 EMPLOYEE MATTERS............................................... 21
10.7 SECTION 1031 ASSET EXCHANGE.................................... 22
10.8 TRUST.......................................................... 22
10.9 STUDIO LOCATION................................................ 23
10.10 LEASE WITH PURCHASER OF WNCX-FM............................... 23
ARTICLE 11 CONDITIONS OF CLOSING BY BUYER............................ 23
11.1 REPRESENTATIONS, WARRANTIES AND COVENANTS...................... 23
11.2 GOVERNMENTAL CONSENTS.......................................... 24
11.3 TRUST.......................................................... 24
11.4 GOVERNMENTAL AUTHORIZATIONS.................................... 24
11.5 ADVERSE PROCEEDINGS............................................ 24
ARTICLE 12 CONDITIONS OF CLOSING BY SELLER........................... 24
12.1 REPRESENTATIONS, WARRANTIES AND COVENANTS...................... 24
12.2 GOVERNMENTAL CONSENTS.......................................... 25
12.3 ADVERSE PROCEEDINGS............................................ 25
12.4 JACOR CLOSING................................................. 25
12.5 TRUST.......................................................... 25
12.6 WNCX LEASE..................................................... 25
ARTICLE 13 TRANSFER TAXES; FEES AND EXPENSES......................... 25
13.1 EXPENSES....................................................... 25
13.2 TRANSFER TAXES AND SIMILAR CHARGES............................. 25
13.3 GOVERNMENTAL FILING OR GRANT FEES.............................. 25
ARTICLE 14 DOCUMENTS TO BE DELIVERED AT CLOSING...................... 26
14.1 SELLER'S DOCUMENTS............................................. 26
14.2 BUYER'S DOCUMENTS.............................................. 26
ARTICLE 15 SURVIVAL; INDEMNIFICATION; ETC............................ 27
Page
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15.1 SURVIVAL OF REPRESENTATIONS, ETC............................... 27
15.2 INDEMNIFICATION................................................ 27
15.3 PROCEDURES; THIRD PARTY AND DIRECT INDEMNIFICATION CLAIMS...... 28
ARTICLE 16 TERMINATION RIGHTS........................................ 29
16.1 TERMINATION.................................................... 29
16.2. LIABILITY..................................................... 30
16.3. MONETARY DAMAGES, SPECIFIC PERFORMANCE AND OTHER REMEDIES..... 30
16.4 SELLER'S LIQUIDATED DAMAGES.................................... 31
16.5 SURVIVAL....................................................... 31
ARTICLE 17 MISCELLANEOUS PROVISIONS.................................. 31
17.1 CASUALTY LOSS.................................................. 31
17.2 CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS................... 31
17.3 FURTHER ASSURANCES............................................. 32
17.4 BENEFIT AND ASSIGNMENT......................................... 32
17.5 AMENDMENTS..................................................... 32
17.6 HEADINGS....................................................... 33
17.7 GOVERNING LAW.................................................. 33
17.8 NOTICES........................................................ 33
17.9 COUNTERPARTS................................................... 34
17.10 NO THIRD PARTY BENEFICIARIES.................................. 34
17.11 SEVERABILITY.................................................. 34
17.12 ENTIRE AGREEMENT.............................................. 34
LIST OF SCHEDULES AND EXHIBITS
Schedule 1.1.5 Programming Materials, Etc.
1.2.8 Miscellaneous Excluded Assets
7.4 Station Licenses, Etc.
7.7 Tangible Personal Property
7.8 Real Property
7.9 Contracts
7.11 Environmental Matters
7.12 Intellectual Property
7.13 Personnel Information
7.14 Litigation
7.16 Insurance
7.17 Compliance with Laws
10.6 Retained Employees
Exhibit
A Approximation of Retained Property
B Deposit Escrow Agreement
C Assignment and Assumption Agreement
ASSETS PURCHASE AGREEMENT
-------------------------
THIS ASSETS PURCHASE AGREEMENT (this "Agreement") is made and entered this
29th day of March, 1999, by and among CLEAR CHANNEL BROADCASTING, INC., a Nevada
corporation ("CCB"), and CLEAR CHANNEL BROADCASTING LICENSES, INC., a Nevada
corporation ("CCBL") (together, "Seller"), and RADIO ONE, INC., a Delaware
corporation ("Buyer").
RECITALS
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WHEREAS, Seller owns and operates radio stations XXXX-FM and WERE(AM),
Cleveland, Ohio (each, individually a "Station" and together, the "Stations")
pursuant to licenses issued by the Federal Communications Commission ("FCC");
WHEREAS, Clear Channel Communications, Inc., the parent of Seller ("Clear
Channel Parent") and CCU Merger Sub, Inc., a Delaware corporation ("Clear
Channel Merger Sub"), have entered into that certain Agreement and Plan of
Merger, dated October 8, 1998, as amended November 11, 1998 (the "Jacor
Agreement"), with Jacor Communications, Inc., a Delaware corporation ("Jacor"),
pursuant to which Jacor will merge with and into Clear Channel Merger Sub;
WHEREAS, Buyer and Seller desire that prior to, or simultaneously with, the
consummation of the transactions contemplated in the Jacor Agreement (the "Jacor
Closing"), in order to comply with certain regulatory limits, Seller will sell
and Buyer will purchase certain assets and assume certain obligations associated
with the ownership and operation of the Stations, all on the terms and subject
to the conditions set forth herein; and
WHEREAS, Seller and Buyer hereby desire that Seller may, at Seller's option
upon notice to Buyer and with prior FCC consent, assign the assets and licenses
of the Stations to a trustee ("Trustee") who would operate and maintain the
Stations between the closing under the Jacor Agreement and the Closing Date
hereunder, pursuant to a trust agreement (the "Trust"), and upon such
circumstances, the Trustee would be charged with consummation of the
transactions contemplated hereunder on Seller's behalf and would be required to
perform Seller's duties hereunder with respect to the Station Assets held in the
Trust.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
PURCHASE OF ASSETS
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1.1 Transfer of Assets. On the terms and subject to the conditions
------------------
hereof and subject to Section 1.2, on the Closing Date (as hereinafter defined),
Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer
shall purchase and assume from Seller, all of the right, title and interest of
Seller in and to all of the assets, properties, interests and rights of Seller
of whatsoever kind and nature, real and personal, tangible and intangible, owned
or leased (to the extent of Seller's leasehold interest) by Seller as the case
may be which are used exclusively in the operation of the Stations and which are
---
specifically described in this Section 1.1, excluding the Excluded Assets as
hereafter defined (the "Station Assets"):
1.1.1 all licenses, permits and other authorizations issued to Seller
by any governmental or regulatory authority, including without limitation those
issued by the FCC with respect to the Stations (the licenses, permits and
authorizations issued by the FCC are hereafter referred to as the "Stations
Licenses"), which are used exclusively in connection with the operation of the
Stations as described in Schedule 7.4, along with renewals or modifications of
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such items between the date hereof and the Closing Date;
1.1.2 all equipment, electrical devices, antennae, cables, tools,
hardware, office furniture and fixtures, office materials and supplies,
inventory, motor vehicles, spare parts and all other tangible personal property
of every kind and description, and Seller's rights therein, owned, leased (to
the extent of Seller's leasehold interest) or held by Seller and used
exclusively in connection with the operation of the Stations and which are
---
listed in Schedule 7.7, and less any retirements or dispositions thereof made
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between the date hereof and the Closing Date in the ordinary course of business
and consistent with past practices of Seller;
1.1.3 all Time Sales Agreements (as defined in Section 2.1), all
Trade Agreements (as defined in Section 2.1), all Real Estate Contracts (as
defined in Section 7.8), and all other contracts, agreements, leases and legally
binding contractual rights, written or oral, relating to the operation of the
Stations which are listed in Schedule 7.8 or Schedule 7.9, together with all
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contracts, agreements, leases and legally binding contractual rights entered
into or acquired by Seller or the Trustee, as the case may be, between the date
hereof and the Closing Date in the ordinary course of business which relate to
the operation of the Station Assets and which are consistent with Section
9.1.4(e) (collectively, the "Contracts");
1.1.4 all of Seller's rights in and to the call letters "XXXX-FM" and
"WERE(AM)" as well as Seller's rights in and to the trademarks, trade names,
service marks, franchises, copyrights, including registrations and applications
for registration of any of them, computer software, programs and programming
material, jingles, slogans, logos and all other logos or licenses to use same
and all other intangible property rights of Seller, which are used exclusively
in connection with the operation of the Stations and which are listed in
---
Schedule 7.12 (collectively, the "Intellectual Property");
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1.1.5 all programming materials and elements of whatever form or
nature owned by Seller that are used exclusively in connection with the
operation of the Stations, and which are
---
2
listed on Schedule 1.1.5, whether recorded on tape or other medium or intended
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for live performance;
1.1.6 Seller's rights in and to all the files, documents, records,
and books of account (or copies thereof) relating exclusively to the operation
of the Stations or to the Station Assets, including the Stations' local public
files, programming information and studies, blueprints, technical information
and engineering data, advertising studies, marketing and demographic data, sales
correspondence, lists of advertisers, credit and sales reports and filings with
the FCC, all written Contracts to be assigned hereunder, logs, software programs
and books and records relating to employees and operation matters; but excluding
records relating solely to any of the Excluded Assets (as hereinafter defined);
and
1.1.7 real property owned in fee by Seller which relates exclusively
to the Stations, together with all appurtenant easements thereunto and all
structures, fixtures and improvements located thereon, and which is described in
---
Schedule 7.8.
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The Station Assets shall be transferred to Buyer free and clear of all
liens, liabilities, encumbrances or rights of third parties whatsoever
("Liens"), except for (i) Assumed Liabilities as provided for in Section 2.1,
(ii) liens for taxes not yet due and payable and for which Buyer receives a
credit pursuant to Section 3.3.1, (iii) such easements, rights of way, building
and use restrictions, exceptions, reservations and limitations as do not in any
material way detract from the value of the property subject thereto or in any
material way interfere with or impair the present and continued use thereof in
the usual and normal conduct of the business of the Stations, (iv) such non-
monetary liens and encumbrances as do not in any material way detract from the
value of the property subject thereto or in any material way interfere with or
impair the present and continued use thereof in the usual and normal conduct of
the business of the Stations, and (v) those permitted encumbrances listed on
Schedule 7.7 (collectively, "Permitted Liens").
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1.2 Excluded Assets. Notwithstanding anything to the contrary contained
---------------
herein, it is expressly understood and agreed that the Station Assets shall not
include the following assets along with all rights, title and interest therein
(the "Excluded Assets"):
1.2.1 all cash and cash equivalents of Seller on hand and/or in
banks, including without limitation certificates of deposit, commercial paper,
treasury bills, marketable securities, asset or money market accounts and all
such similar accounts or investments;
1.2.2 all accounts receivable or notes receivable arising in
connection with the operation of the Stations prior to the Closing Date;
1.2.3 all tangible and intangible personal property of Seller
disposed of or consumed in the ordinary course of business of Seller between the
date of this Agreement and the Closing Date;
1.2.4 all Contracts that have terminated or expired prior to the
Closing Date in the ordinary course of business of Seller;
3
1.2.5 Seller's corporate seal, minute books, charter documents,
corporate stock record books and such other books and records as pertain to the
organization, existence or share capitalization of Seller and duplicate copies
of such records as are necessary to enable Seller to file its tax returns and
reports as well as any other records or materials relating to Seller generally
and not involving or relating to the Station Assets or the operation or
operations of the Stations;
1.2.6 contracts of insurance, and all insurance proceeds or claims
made thereunder, except as provided in Section 17.1;
1.2.7 all pension, profit sharing or cash or deferred (Section
401(k)) plans and trusts and the assets thereof and any other employee benefit
plan or arrangement and the assets thereof, if any, maintained by Seller;
1.2.8 any right, property or asset described in Schedule 1.2.8, or
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any right, property or asset not specifically described in Section 1.1 herein;
1.2.9 such portion of any Contract that is apportioned other than to
Buyer pursuant to Section 1.3 hereof; and
1.2.10 such portion of any Owned Real Estate that is retained by
Seller or otherwise not transferred to Buyer pursuant to Section 1.4 hereof.
1.3 Apportionment of Contracts. Notwithstanding anything to the contrary
--------------------------
contained herein, it is expressly understood and agreed that certain of the
Contracts are jointly used by and among WNCX-FM and one or both of the Stations.
Upon Closing, as to those Contracts used in common by WNCX-FM and by one or both
of the Stations, Seller will equitably allocate the rights and obligations
thereunder between the owner of WNCX-FM and Buyer in accordance with: (a) the
allocation in the contract (which shall control, if applicable); (b) industry
practice, if applicable; (c) quantifiable proportionate benefit; and (d)
reasonable allocation or accommodation, as determined by Seller. The parties
shall cooperate to effect such an equitable allocation, and, upon Closing Buyer
shall assume those contracts and leases assigned to it hereunder (whether such
assignment is in whole or allocated), and neither Seller nor the owner of WNCX-
FM shall have any obligations with respect to such contracts, or portions
thereof, allocated to Buyer.
1.4 Retained Portion of WERE(AM) Tower Site.
---------------------------------------
1.4.1 Subdivision of WERE Tower Property. Notwithstanding anything
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to the contrary contained herein, the parties acknowledge and agree that the
parcel of Owned Real Estate on which the WERE(AM) radio transmission towers (the
"WERE Towers") are located (the "WERE Tower Property") may, at Seller's election
(which may be exercised before or after Closing), be subdivided into two or more
separate parcels by Seller (if possible, prior to Closing), which subdivision
may include an easement for access to a portion of the WERE Tower Property that
will not be conveyed to Buyer at Closing and which would extend over the portion
of the WERE Tower Property that will be conveyed to Buyer at Closing (the
portion of
4
the WERE Tower Property not being conveyed to Buyer, the "Retained Property").
Seller contemplates as of the date hereof that the Retained Property will
consist of: (i) the portion of the WERE Tower Property west of the WERE Towers,
and (ii) the north-eastern portion of the WERE Tower Property connecting to
Ridge Road (approximately 100 feet x 750 feet), each approximately as indicated
on Exhibit A. Any subdivision contemplated in this Section 1.4 shall be at
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Seller's sole expense, and the Retained Property shall be an Excluded Asset.
1.4.2 Procedure for Subdivision. If one or more of the subdivisions
-------------------------
contemplated in this Section 1.4 is not completed prior to Closing, the entire
WERE Tower Property (less the portion, if any, as to which a subdivision has
been completed) shall be conveyed to Buyer on the condition that, if the
subdivision occurs within two years after the Closing, Buyer shall reconvey the
Retained Portion to Seller or Seller's designee promptly after such subdivision
has occurred. If Seller elects to subdivide the WERE Tower Property, the parties
shall use their reasonable best efforts to reach mutual agreement on each of the
following: (a) if an easement for access is required in connection with all or a
portion of the Retained Property, a form of easement agreement (the "Easement
Agreement") designating the location of any required ingress and egress for the
Retained Property and the parties' rights to use and responsibilities for
maintaining any such easement, and (b) a form of restrictive covenant (the
"Restrictive Covenant") encumbering the Retained Property and benefiting the
remainder of the WERE Tower Property, and providing that the use and ownership
of the Retained Property shall not (i) interfere with or damage the operation of
the WERE Towers and any interference or damage caused by Seller or an agent of
Seller shall be remedied at Seller's sole expense, or (ii) impair the
obligations of the owner of the conveyed portion of the WERE Tower Property as
landlord under the WNCX Lease (defined below) or the lease(s) with Educational
Television Association of Metropolitan Cleveland. Any Easement Agreement or
Restrictive Covenant shall be executed, delivered and recorded in connection
with the Closing, or, if the subdivision is not then completed, upon
reconveyance of the Retained Property to Seller.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
-------------------------
2.1 Assumption of Obligations. Subject to the provisions of this Section
2.1, Section 2.2 and Section 3.3, on the Closing Date, Buyer shall assume, pay,
satisfy, discharge and perform in accordance with the terms thereof the
obligations of Seller arising or to be performed on and after the Closing Date
(except to the extent such obligations and liabilities arise out of or are
related to activities, events or transactions occurring prior to the Closing
Date) under the Contracts, including (a) all agreements for the sale of
advertising time on the Stations for cash and at prices consistent with Seller's
ordinary course of business ("Time Sales Agreements"); and (b) all agreements
which are for consideration other than cash, such as merchandise, services or
promotional consideration arising in the ordinary course of business of Seller
and listed on Schedule 7.9 hereto ("Trade Agreements"). All of the foregoing
------------
liabilities and obligations shall be referred to herein collectively as the
"Assumed Liabilities."
2.2 Retained Liabilities. Notwithstanding anything contained in this
--------------------
Agreement to the contrary, Buyer expressly does not, and shall not, assume or
agree to discharge or perform
5
and will not be deemed by virtue of the execution and delivery of this Agreement
or any agreement, instrument or document delivered pursuant to or in connection
with this Agreement or otherwise by reason of or in connection with the
consummation of the transactions contemplated hereby or thereby, to have assumed
or to have agreed to discharge or perform, any liabilities, obligations or
commitments of Seller of any nature whatsoever whether accrued, absolute,
contingent or otherwise and whether or not disclosed to Buyer, other than the
Assumed Liabilities.
ARTICLE 3
CONSIDERATION
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3.1 Delivery of Consideration. In consideration for the sale of the
-------------------------
Station Assets to Buyer, in addition to the assumption of certain obligations of
Seller pursuant to Section 2.1 above, Buyer shall, at the Closing (as
hereinafter defined), deliver to Seller TWENTY MILLION DOLLARS ($20,000,000) by
wire transfer of immediately available funds, subject to adjustment pursuant to
the provisions of Sections 3.2 and 3.3 below (the "Purchase Price").
3.2 Escrow Deposit.
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3.2.1 Within one (1) business day of the execution and delivery of
this Agreement, Buyer, Seller and The Fifth Third Bank, as Escrow Agent (the
"Deposit Escrow Agent"), shall enter into a Deposit Escrow Agreement in the form
of Exhibit B hereto (the "Deposit Escrow Agreement") pursuant to which Buyer
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shall deposit the amount described below as a deposit on the amount of the
Purchase Price. Such amounts held in escrow shall be applied as set forth
herein and in the Deposit Escrow Agreement.
3.2.2 Buyer shall wire transfer TWO MILLION DOLLARS ($2,000,000) to
the Deposit Escrow Agent's trust account pursuant to the Deposit Escrow
Agreement (the "Escrow Deposit"), and at the Closing, the Escrow Deposit shall
be applied to the Purchase Price to be paid to Seller and the interest accrued
thereon shall be paid to Buyer. As more fully described in the Deposit Escrow
Agreement: (a) in the event of Buyer's material breach of this Agreement and
Seller shall not at such time be in material breach of this Agreement, the
Escrow Deposit, plus any interest earned thereon, shall be paid to Seller as
liquidated damages as provided in Section 16.4 hereto for Buyer's material
breach of this Agreement (the payment of such sum to Seller shall discharge any
liability Buyer may have to Seller hereunder other than in connection with any
FCC, Escrow Agent or other fees to the extent payable by Buyer hereunder),
unless Seller elects to specifically enforce the Agreement pursuant to the
provisions of Section 16.3; and (b) in the event this Agreement is terminated
under any circumstances other than a Closing hereunder or those set forth in the
immediately preceding clause (a), the Escrow Deposit and the interest accrued
thereon shall be paid to Buyer.
3.3 Proration of Income and Expenses; Trade Agreements Adjustment .
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3.3.1 Except as otherwise provided herein, all deposits, reserves and
prepaid and deferred income and expenses relating to the Station Assets or the
Assumed Liabilities and
6
arising from the conduct of the business and operations of the Stations shall be
prorated between Buyer and Seller in accordance with generally accepted
accounting principles as of 11:59 p.m., Eastern time, on the date immediately
preceding the Closing Date. Such prorations shall include, without limitation,
all ad valorem, real estate and other property taxes (but excluding taxes
arising by reason of the transfer of the Station Assets as contemplated hereby
which shall be paid as set forth in Section 13.2), business and license fees,
music and other license fees, utility expenses, amounts due or to become due
under Contracts to the extent provided in Section 3.3.3 hereof, rents, lease
payments and similar prepaid and deferred items. Real estate taxes shall be
apportioned on the basis of taxes assessed for the preceding year, with a
reapportionment, if any, as soon as the new tax rate and valuation can be
ascertained.
3.3.2 On the Closing Date, Seller shall deliver to Buyer a report,
dated as of the Closing Date (the "Closing Date Trade Report"), which report
lists all Trade Agreements included in the Station Assets and the contract end
date for each Trade Agreement together with an itemized statement of the
aggregate value of time owed ("Barter Payable") and the aggregate value of goods
and services to be received ("Barter Receivable") pursuant to each of the Trade
Agreements. To the extent that the aggregate value as reflected on the Closing
Date Trade Report of the Stations' Barter Payable is $30,000 more than the
aggregate value as reflected on the Closing Date Trade Report of the Barter
Receivable, Buyer shall be entitled to receive a credit against the Purchase
Price at Closing to the extent Barter Payable exceeds Barter Receivable by more
than $30,000.
3.3.3 Except as otherwise provided herein, the prorations and
adjustments contemplated by this Section 3.3, to the extent practicable, shall
be made on the Closing Date. As to those prorations and adjustments not capable
of being ascertained on the Closing Date, an adjustment and proration shall be
made within ninety (90) days of the Closing Date.
3.3.4 In the event of any disputes between the parties as to such
adjustments, the amounts not in dispute shall nonetheless be paid at the time
provided in Section 3.3.3 and such disputes shall be determined by an
independent certified public accountant mutually acceptable to the parties, and
the fees and expenses of such accountant shall be paid one-half by Seller and
one-half by Buyer. Notwithstanding the foregoing, if the aggregate amount in
dispute is $5,000 or less, the disputed amount shall be shared equally by Buyer
and Seller.
3.4 Allocation of Purchase Price. The Purchase Price shall be allocated
----------------------------
among the Assets in a manner as mutually agreed between the parties based upon
an appraisal prepared by Bond & Xxxxxx (the cost of which shall be paid by
Seller), and such appraisal and allocation shall be completed prior to Closing
unless otherwise agreed to by the parties. Seller and Buyer agree to use the
allocations determined pursuant to this Section 3.4 for all tax purposes,
including without limitation, those matters subject to Section 1060 of the
Internal Revenue Code of 1986, as amended.
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ARTICLE 4
CLOSING
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4.1 Closing. Except as otherwise mutually agreed upon by Buyer and
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Seller, the consummation of the transactions contemplated herein (the "Closing")
shall occur on the later to occur of: (a) (i) the satisfaction or waiver of the
conditions to closing contained herein (excluding conditions that by their terms
cannot be satisfied until the Closing Date), and provided that each party hereto
shall use its reasonable commercial efforts to cause each condition to closing
to be satisfied so that the Closing may occur at the earliest possible date;
(ii) obtaining the FCC Consent (as defined in Section 5.1), (iii) obtaining the
DOJ Consent (as defined in Section 5.1), and (iv) the date of closing under the
Jacor Agreement, unless waived by Seller, or (b) such other date as may be
mutually agreed by the parties hereto (the "Closing Date"). The Closing shall
be held in the offices of Seller's counsel, or at such place and in such manner
as the parties hereto may agree.
4.2 Unwind. If the FCC Consent is reversed or otherwise set aside and
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there is an order of the FCC (or a court of competent jurisdiction) that is no
longer subject to judicial or other review denying or disapproving the
assignment of the Stations Licenses to Buyer or returning, or requiring the
reassignment of, the Stations Licenses to CCBL (an "FCC Denial"), Buyer shall
assign to CCBL the Stations Licenses and reconvey to CCB the other Station
Assets, and Seller shall pay to Buyer the Purchase Price and reassume the
contracts and leases assigned and assumed at Closing, all on a mutually
agreeable date within thirty (30) days of any FCC Denial (or, if earlier, within
the time required by such order). In connection herewith, Buyer and Seller
shall each execute such documents and make such payments as are necessary to
give effect thereto. Each party further agrees to execute such documents,
instruments and agreements, and take such other action, as may be necessary to
implement any such transaction and carry out the intent of this Section 4.2 in
the event of an FCC Denial. In the event that Seller is precluded from having
the Stations Licenses and Station Assets assigned and reconveyed to it because
of restrictions imposed by the FCC and/or DOJ, then Seller and Buyer will
cooperate to assign and convey the Stations Licenses and Station Assets to a
mutually-agreeable third party. Any excess or deficiency between the Purchase
Price and the amount paid by such third-party buyer of the Stations shall be
split evenly between the Buyer and Seller. This Section shall survive the
Closing, but shall terminate on the date the FCC Consent becomes final.
ARTICLE 5
GOVERNMENTAL CONSENTS
---------------------
5.1 FCC Consent and Department of Justice Consent. It is specifically
---------------------------------------------
understood and agreed by Buyer and Seller that the Closing, the assignment of
the Stations Licenses and the transfer of the Station Assets are expressly
conditioned on and are subject to the prior consent and approval of (i) the FCC
without the imposition of any conditions materially adverse to either party or
their respective Affiliates (the "FCC Consent") and (ii) the United States
Department of Justice ("DOJ") without the imposition of any conditions
materially adverse to either party or their respective Affiliates ("DOJ
Consent").
5.2 FCC Application. If the same has not already been filed as of the
---------------
time of the execution hereof, then within three (3) business days after the
execution of this Agreement,
8
Buyer and Seller shall file an application with the FCC for the FCC Consent (the
"FCC Application"). Buyer and Seller shall prosecute the FCC Application with
all reasonable diligence and otherwise use their reasonable best efforts to
obtain the FCC Consent as expeditiously as practicable (but neither Buyer nor
Seller shall have any obligation to satisfy complainants or the FCC by taking
any steps which would have a material adverse effect upon Buyer or Seller or
upon any of their respective Affiliates). If the FCC Consent imposes any
condition on Buyer or Seller or any of their respective Affiliates, such party
shall use its reasonable best efforts to comply with such condition; provided,
however, that neither Buyer nor Seller shall be required hereunder to comply
with any condition that would have a material adverse effect upon it or any of
its Affiliates. 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 and the other party shall cooperate in such
efforts; provided, however, that nothing herein shall be construed to limit
either party's right to terminate this Agreement pursuant to Article 16 hereof.
5.3 HSR Application. If the same has not already been filed as of
---------------
the time of the execution hereof, then within ten (10) business days after the
execution of this Agreement, Buyer and Seller shall make any and all required
governmental filings pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended (the "HSR Act") with respect to the transactions
contemplated hereby, and shall use their best efforts to respond as promptly as
practicable to all inquiries received from the applicable governmental agencies
or committees for additional information or documentation. Buyer and Seller
will notify each other of all correspondence, filings or communications between
such party or its representatives, on the one hand, and the applicable
governmental agencies or committees, on the other hand, with respect to this
Agreement and the transaction contemplated hereby. Buyer and Seller will
furnish each other with such necessary information and reasonable assistance as
such other parties may request in connection with their preparation of all
filings pursuant to the HSR Act.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby makes the following representations and warranties to Seller,
each of which is true and correct on the date hereof:
6.1 Organization and Standing. Buyer is a corporation duly organized,
-------------------------
validly existing and in good standing under the laws of the State of Delaware,
and at the time of Closing will be authorized to conduct business in the State
of Ohio.
6.2 Authorization and Binding Obligation. Buyer has all necessary power
------------------------------------
and authority to enter into and perform this Agreement and the transactions
contemplated hereby, and to own or lease the Station Assets and to carry on the
business of the Stations upon the consummation of the transactions contemplated
by this Agreement. Buyer's execution, delivery and performance of this
Agreement and the transactions contemplated hereby have been duly and validly
authorized by all necessary action on its part and, assuming the due
authorization, execution and delivery of this Agreement by Seller, this
Agreement will constitute the valid and
9
binding obligation of Buyer, enforceable against it in accordance with its
terms, except as limited by laws affecting creditors' rights or equitable
principles generally.
6.3 Qualification. Buyer is legally, financially and otherwise
-------------
qualified to be the licensee of, acquire, own and operate the Stations under the
Communications Act of 1934, as amended, and the rules, regulations and policies
of the FCC. To the best knowledge of Buyer, there are no facts that would, under
existing law and the existing rules, regulations and policies of the FCC,
disqualify Buyer as an assignee of the Stations Licenses or as the owner and
operator of the Station Assets. No waiver of any FCC rule or policy is
necessary to be obtained for the grant of the application for the assignment of
the Stations Licenses to Buyer.
6.4 Absence of Conflicting Agreements of Required Consents. Except as
------------------------------------------------------
set forth in Article 5 hereof with respect to governmental consents, the
execution, delivery and performance of this Agreement by Buyer: (a) do not
conflict with the provisions of the articles of incorporation, operating
agreement, or by-laws of Buyer or with any other similar instrument of corporate
governance; (b) do not require the consent of any third party (including,
without limitation, the consent of any governmental, regulatory, administrative
or similar authority); (c) will not violate any applicable law, judgment, order,
injunction, decree, rule, regulation or ruling of any governmental authority to
which Buyer is bound; and (d) will not, either alone or with the giving of
notice or the passage of time, or both, conflict with, constitute grounds for
termination of or result in a breach of the terms, conditions or provisions of,
or constitute a default under, any agreement, instrument, license or permit to
which Buyer is now subject.
6.5 Litigation. There is no claim, litigation, proceeding or investigation
----------
pending or, to the best of Buyer's knowledge, threatened against Buyer, that
could reasonably be expected to materially adversely affect Buyer's ability to
perform its obligations pursuant to this Agreement. Buyer is not in violation of
any law, regulation, or ordinance or any other requirement of any governmental
body or court which could reasonably be expected to have a material adverse
effect on Buyer's ability to perform its obligations pursuant to this Agreement.
6.6 Commissions or Finder's Fees'. Neither Buyer nor any person or
-----------------------------
entity acting on behalf of Buyer has agreed to pay a commission, finder's fee or
similar payment in connection with this Agreement or any matter related hereto,
except to Media Ventures Partners, whose fees shall be paid by Buyer, and Buyer
shall hold harmless and indemnify Seller therefor.
6.7 Availability of Funds. Buyer has available as of the date hereof
---------------------
sufficient funds to enable it to pay the Escrow Deposit as called for herein and
in the Escrow Agreement, and will have available on the Closing Date sufficient
funds to enable it to consummate the transactions contemplated hereby.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller makes the following representations and warranties to Buyer, each of
which is true and correct on the date hereof:
10
7.1 Organization and Standing. Seller is a corporation duly organized,
-------------------------
validly existing and in good standing under the laws of the State of Nevada, is
authorized to conduct business within the State of Ohio, and has the power and
authority to own, lease and operate the Station Assets and to carry on the
business of the Stations as now being conducted and as proposed to be conducted
between the date hereof and the Closing Date.
7.2 Authorization and Binding Obligation. Seller has the power and
------------------------------------
authority, and has taken all necessary and proper action to enter into and
perform this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by Seller and,
assuming the due authorization, execution and delivery of this Agreement by
Buyer, constitutes the valid and binding obligation of Seller enforceable
against Seller in accordance with its terms, except as limited by laws affecting
the enforcement of creditor's rights or equitable principles generally.
7.3 Absence of Conflicting Agreements or Required Consents. Except as
------------------------------------------------------
set forth in Article 5 with respect to governmental consents and in Schedule 7.8
------------
or Schedule 7.9 with respect to consents required in connection with the
------------
assignment of certain Contracts, the execution, delivery and performance of this
Agreement by Seller: (a) do not require the consent of any third party
(including, without limitation, the consent of any governmental, regulatory,
administrative or similar authority); (b) do not conflict with, result in a
breach of, or constitute a violation of or default under, the provisions of
Seller's articles of incorporation, bylaws or other charter documents or any
applicable law, judgment, order, injunction, decree, rule, regulation or ruling
of any governmental authority to which Seller is a party or by which Seller or
any of the Station Assets are bound; (c) will not either alone or with the
giving of notice or the passage of time, or both, conflict with, constitute
grounds for termination of or result in a breach of the terms, conditions or
provisions of, or constitute a default under, any Contract, agreement,
instrument, license or permit to which Seller or any of the Station Assets is
now subject; and (d) will not result in the creation of any Liens on any of the
Station Assets.
7.4 Government Authorizations.
-------------------------
7.4.1 Schedule 7.4 hereto contains a true and complete list of the
------------
Stations Licenses and other licenses, permits or other authorizations from
governmental and regulatory authorities which are required for the lawful
conduct of the business and operations of the Stations in the manner and to the
full extent they are presently conducted (including, without limitation,
auxiliary licenses associated with the Stations).
7.4.2 Seller is the authorized legal holder of the Stations Licenses
and the other licenses, permits and authorizations listed in Schedule 7.4,
------------
which, except as set forth in Schedule 7.4, are in full force and effect, in
------------
good standing and are, to the knowledge of Seller, unimpaired by any act of
Seller or its directors, officers, employees, agents or Affiliates, and none of
which is subject to any restrictions or conditions which would limit in any
respect the full operation of the Stations as now operated.
11
7.4.3 Except as set forth in Schedule 7.4, there are no applications,
------------
complaints, petitions or proceedings pending or, to Seller's knowledge,
threatened as of the date hereof before the FCC or any other governmental or
regulatory authority relating to the business or operations of the Stations.
The operations of the Stations are in material compliance with the Stations
Licenses and the underlying construction permits and the other licenses, permits
and authorizations listed in Schedule 7.4.
------------
7.4.4 Except as set forth in Schedule 7.4, all material reports,
------------
forms, and statements required to be filed by Seller with the FCC with respect
to the Stations since the acquisition of the Stations by Seller have been filed.
7.4.5 Except as set forth in Schedule 7.4, to the best knowledge of
------------
Seller, there are no facts which, under the Communications Act of 1934, as
amended, or the existing rules and regulations of the FCC, would disqualify
Seller as assignor of the Stations Licenses or cause the Stations Licenses and
the other licenses, permits and authorizations listed in Schedule 7.4 not to be
------------
renewed in their ordinary course.
7.5. Compliance with FCC Regulations. Except as set forth in Schedule
------------------------------- --------
7.4, the operation of the Stations and all of the Station Assets are in
---
compliance in all material respects with: (a) all applicable engineering
standards required to be met under applicable FCC rules; and (b) all other
applicable federal, state and local rules, regulations, requirements and
policies, including, but not limited to, equal employment opportunity policies
of the FCC, and all applicable painting and lighting requirements of the FCC and
the Federal Aviation Administration to the extent required to be met under
applicable FCC rules and regulations, and to Seller's knowledge, there are no
existing claims to the contrary.
7.6 Taxes. Except where failure to do so would not have a material
-----
adverse affect on the business or operations of the Stations, Seller has filed
all federal, state, local and foreign income, franchise, sales, use, property,
excise, payroll and other tax returns required by law to be filed by it and has
paid in full all taxes, estimated taxes, interest, assessments, and penalties
due and payable by it.
7.7 Personal Property. Schedule 7.7 hereto contains a list of all
----------------- ------------
material items of tangible personal property owned by Seller which are used
exclusively in the conduct of the business and operations of the Stations, and
which are to be conveyed to Buyer pursuant to the terms of this Agreement.
Schedule 7.7 also separately lists any material tangible personal property
------------
leased by Seller pursuant to leases included within the Contracts. Except as
disclosed in Schedule 7.7, Seller has, or at the Closing will have, and
------------
following the Closing, Buyer will have, good and marketable title to all of the
Station Assets (other than those subject to lease) and none of the Station
Assets is, or at the Closing will be, subject to any Liens or title defects,
except for Permitted Liens. The Station Assets include all of the assets,
properties, interests and rights of whatsoever kind or nature, real or personal,
tangible or intangible owned or leased necessary to conduct the business and
operations of the Stations as now conducted.
7.8 Real Property.
-------------
12
7.8.1 Schedule 7.8 hereto contains a complete and accurate list and
------------
description of: (a) all real property or the relevant portions thereof
(including without limitation, real property relating to the towers,
transmitters, studio sites and offices of the Stations) owned by Seller and used
by Seller exclusively in connection with the operations of the Stations (the
"Owned Real Estate"); and (b) all real property or the relevant portions thereof
(including without limitation, real property relating to the towers,
transmitters, studio sites and offices of the Stations) not owned by Seller and
used by Seller exclusively in connection with the operations of the Stations
pursuant to agreements, leases and other contracts (the "Real Estate
Contracts").
7.8.2 The Real Estate Contracts listed on Schedule 7.8 and Schedule
------------ --------
7.9 are in full force and effect and are valid, binding and enforceable in
---
accordance with their terms. Seller enjoys quiet possession of all real
property subject to the Real Estate Contracts. Seller is not in material
default under any Real Estate Contract nor, to Seller's knowledge, is any other
party thereto, and there are no present disputes or claims with respect to
offsets or defenses by any party against the other under any of the Real Estate
Contracts. Seller has delivered to Buyer true and complete copies of all Real
Estate Contracts.
7.8.3 Seller has, or at Closing will have, good, marketable and
insurable fee simple title to the Owned Real Estate free and clear of any Liens,
except for Permitted Liens. Seller has good and marketable leasehold interests
in the real estate subject to the Real Estate Contracts (where the Real Estate
Contract is a lease), free and clear of any Liens, except for Permitted Liens.
7.8.4 Seller has full legal and practical access to all of the real
property described in Schedule 7.8. The Owned Real Estate, together with the
------------
real estate subject to the Real Estate Contracts, includes all the real
property, easements, rights of way, and other real property interests necessary
to conduct the business and operations of the Stations as now conducted. To
Seller's knowledge, all buildings, structures, towers, antennae, improvements
and fixtures comprising part of the real properties owned or leased by Seller
are in good and sound operating condition, have no latent structural, mechanical
or other defects of material significance, are reasonably suitable for the
purposes for which they are being used and each has adequate rights of ingress
and egress, utility service for water and sewer, telephone, electric and/or gas,
and sanitary service for the conduct of the business and operations of the
Stations as presently conducted.
7.8.5 The WERE Tower Property less the Retained Property will be
sufficient for: (a) the ownership and operation of the WERE Towers, (b) the
tower and other transmission facilities of WNCX-FM, and (c) satisfaction of any
obligation owing to Educational Television Association of Metropolitan Cleveland
under leases relating to WVIZ transmission facilities on the WERE Tower
Property. All of the representations and warranties made by Seller with respect
to the Station Assets, the Owned Real Estate and any other terms that include
the WERE Tower Property shall be deemed to be made both with respect to the
entire WERE Tower Property and with respect to the WERE Tower Property excluding
the Retained Property, including but not limited to the representations that the
Owned Real Estate includes all real property necessary to conduct the business
and operations of the Stations as now conducted, and
13
that use or ownership of the Station Assets is not in violation of any laws
(including but not limited to any zoning or land use ordinances).
7.9 Contracts. Schedule 7.9 lists all material Contracts respecting the
--------- ------------
Stations (excepting Time Sales Agreements, which are not separately listed but
which are consistent with Section 2.1(a)) to which Seller is a party and which
are to be assigned to Buyer pursuant to the terms of this Agreement, as of the
date of this Agreement. Those Contracts, if any, requiring the consent of a
third party to assignment are identified with an asterisk on Schedule 7.9.
------------
7.10 Status of Contracts, Etc. Except as set forth on Schedule 7.9, all
------------------------ ------------
of the Contracts are in full force and effect and are valid, binding and
enforceable in accordance with their respective terms, except as limited by laws
affecting creditors' rights or equitable principles generally. Seller has
complied in all material respects with all written and oral Contracts, and is
not in material default beyond any applicable grace periods under any thereof
and, to Seller's knowledge, no other contracting party is in material default
under any thereof.
7.11 Environmental. Except as set forth in Schedule 7.11, to Seller's
------------- -------------
knowledge, Seller has complied in all material respects with all federal, state
and local environmental laws, rules and regulations as in effect on the date
hereof applicable to the Station Assets which are used or useful in the
operation of the Stations, including but not limited to the FCC's guidelines
regarding RF radiation. To Seller's knowledge, the technical equipment included
within the Station Assets which are used or useful in the operation of the
Stations does not contain any PCBs. No hazardous or toxic waste, substance,
material or pollutant (as those or similar terms are defined under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. (S)(S) 9601 et seq., Toxic Substances Control Act, 15 U.S.C.
-- ---
(S)(S) 2601 et seq., the Resource Conservation and Recovery Act of 1976, 42
-- ---
U.S.C. (S)(S) 6901 et seq. or any other applicable federal, state and local
-- ---
environmental law, statute, ordinance, order, judgment, rule or regulation
relating to the environment or the protection of human health ("Environmental
Laws")), including but not limited to, any asbestos or asbestos related
products, oils or petroleum-derived compounds, CFCs, PCBs, or underground
storage tanks, have been released, emitted or discharged by Seller or at
Seller's direction or to Seller's knowledge are currently located in, on, under,
or about the Owned Real Estate or property used pursuant to Real Estate
Contracts, including the transmitter sites, or contained in the tangible
personal property included within the Station Assets which are used or useful in
the operation of the Stations.
7.12 Intellectual Property. Schedule 7.12 hereto is a true and complete
--------------------- -------------
list of all Intellectual Property applied for, registered or issued to, and
owned by Seller or under which Seller is a licensee which is used in the conduct
of the Seller's business and operations of the Station Assets which is being
transferred to Buyer pursuant to this Agreement. Except as set forth on
Schedule 7.12, Seller's right, title and interest in the Intellectual Property
-------------
as owner or licensee, as applicable, is free and clear of all Liens and, to the
extent any of the Intellectual Property is licensed to Seller, such interest is
valid and uncontested by the licensor thereof or any third party.
7.13 Personnel Information.
---------------------
14
7.13.1 Except as disclosed in Schedule 7.13, Seller is not a party to
-------------
any contract or agreement with any labor organization, nor has Seller agreed to
recognize any union or other collective bargaining unit, nor has any union or
other collective bargaining unit been certified as representing any employees of
Seller relating to the Stations. Seller has no knowledge of any organizational
effort currently being made or threatened by or on behalf of any labor union
with respect to employees of the Stations.
7.13.2 Except as disclosed in Schedule 7.13, Seller has complied in
-------------
all material respects with all laws relating to the employment of labor,
including, without limitation, the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes ("Employment Laws"); provided,
--------
however, that Seller's representation under this Section 7.13.2 is made only to
-------
the extent Buyer could have liability as a result of Seller's noncompliance with
Employment Laws.
7.14 Litigation. Except as set forth in Schedule 7.14, Seller is not
---------- -------------
subject to any judgment, award, order, writ, injunction, arbitration decision or
decree relating to the conduct of the business or the operation of the Stations
or any of the Station Assets, and, except as set forth in Schedules 7.4 and
-------------
7.14, there is no litigation, administrative action, arbitration, proceeding or
----
investigation pending or, to the knowledge of Seller, threatened against the
Stations in any federal, state or local court, or before any administrative
agency or arbitrator (including, without limitation, any proceeding which seeks
the forfeiture of, or opposes the renewal of, any of the Stations Licenses), or
before any other tribunal duly authorized to resolve disputes.
7.15 Commissions or Finder's Fees'. Neither Seller nor any person or
-----------------------------
entity acting on behalf of Seller has agreed to pay a commission, finder's fee
or similar payment in connection with this Agreement or any matter related
hereto to any person or entity.
7.16 Insurance. Seller now has in force adequate fire and other risk
---------
insurance covering the full replacement value of the Station Assets and shall
cause such insurance to be maintained in full force until the Closing Date.
Except as set forth in Schedule 7.16, Seller also shall maintain in full force
-------------
until the Closing Date, adequate general public liability insurance with respect
to the Station Assets in amounts consistent with broadcasting industry standards
for similar stations.
7.17 Compliance With Laws. Except as set forth in Schedule 7.17, Seller
-------------------- -------------
is not in violation of, and has not received any notice asserting any non-
compliance by it in connection with the operation of the Stations or use or
ownership of any of the Station Assets with, any applicable statute, rule or
regulation, whether federal, state or local, that would have a material adverse
effect on the Stations. Seller is not in material default with respect to any
judgment, order, injunction or decree of any court, administrative agency or
other governmental authority or any other tribunal duly authorized to resolve
disputes which relate to the transactions contemplated hereby or that would have
a material adverse effect on the Stations. Except where failure to do so would
not have a material adverse affect on the Stations, Seller is in full compliance
with all laws, regulations and governmental orders applicable to the conduct of
the
15
business and operations of the Stations, and its present use of the Station
Assets does not violate any of such laws, regulations or orders.
7.18 Financial Information. Seller has furnished Buyer with an unaudited
---------------------
income statement and balance sheet for the Stations for calendar year 1998. This
financial information: (i) has, to Seller's best knowledge and belief, been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis through the period involved; and (ii) fairly presents in all
material respects the information relating to the Stations set forth therein as
of the date and for the period indicated.
******
Except with respect to Section 7.4, whenever in this Article 7 a warranty
or representation is qualified by a word or phrase referring to Seller's
knowledge, it shall mean, as to each Station, to the actual knowledge of each
Station's respective general manager.
ARTICLE 8
COVENANTS OF BUYER
------------------
8.1 Closing. Subject to Article 11 hereof, on the Closing Date, Buyer
-------
shall purchase the Station Assets from Seller as provided in Article 1 hereof
and shall assume the Assumed Liabilities of Seller as provided in Article 2
hereof.
8.2 Notification. Buyer will provide Seller prompt written notice of
------------
any material change in any of the information contained in the representations
and warranties made in Article 6. Buyer shall also promptly notify Seller of
any litigation, arbitration or administrative proceeding pending or, to the best
of its knowledge, threatened against Buyer which challenges the transactions
contemplated hereby.
8.3 No Inconsistent Action. Buyer shall not take any action which (i)
----------------------
is materially inconsistent with its obligations under this Agreement; (ii) would
cause any representation or warranty of Buyer contained herein to be or become
false or invalid; or (iii) could unreasonably hinder or delay the consummation
of the transactions contemplated by this Agreement. In the event any fact
relating to Buyer which would cause the FCC to deny its consent to the
transactions contemplated by this Agreement comes to Buyer's attention, Buyer
shall promptly notify Seller thereof and will use its reasonable efforts to take
such steps as are necessary to remove such impediment to the FCC's consent to
the transactions contemplated by this Agreement, including but not limited to,
refraining from entering into agreements to acquire, time broker, or sell time
for, any stations in the Stations' market, divesting any stations purchased or
contracted for after the date hereof which the FCC advises Buyer and Seller,
whether orally or otherwise, will impede the timely grant of the FCC Consent,
and/or terminating any agreements to acquire, time broker, or sell time for, any
stations in the Stations' market.
8.4 Accounts Receivable. Buyer acknowledges that all accounts receivable
-------------------
arising prior to the Closing Date in connection with the operation of the
Stations, including but not
16
limited to accounts receivable for advertising revenues for programs and
announcements performed prior to the Closing Date and other broadcast revenues
for services performed prior to the Closing Date, shall remain the property of
Seller (the "Seller Accounts Receivable") and that Buyer shall not acquire any
beneficial right or interest therein or responsibility therefor. For a period of
one hundred eighty (180) days from the Closing Date ("Collection Period"), Buyer
agrees to collect the Seller Accounts Receivable for the Stations in the normal
and ordinary course of Buyer's business and will apply all such amounts
collected to the debtor's oldest account receivable first, except that any such
accounts collected by Buyer from persons who are also indebted to Buyer may be
applied to Buyer's account if expressly directed by the debtor if there is a
bona fide dispute between Seller and such account debtor with respect to such
account and in which case the Buyer shall notify the Seller of such dispute and
after such notification Seller shall have the right to pursue collection of such
account and to avail itself of all legal remedies available to it. Except as set
forth in the previous sentence, during the Collection Period, neither Seller nor
its agents shall make any direct solicitation of any such account debtor for
collection purposes or institute litigation for the collection of amounts due.
Buyer's obligation and authority shall not extend to the institution of
litigation, employment of counsel or a collection agency or any other
extraordinary means of collection. After the Collection Period, Buyer agrees to
reasonably cooperate with Seller, at Seller's expense (including reimbursement
of actual expenses reasonably incurred by Buyer in connection with such
cooperation), as to any litigation or other collection efforts instituted by
Seller to collect any delinquent Seller Accounts Receivable. Any amounts
relating to the Seller Accounts Receivable that are paid directly to the Seller
shall be retained by the Seller, but Seller shall provide Buyer with notice of
any such payment. Within twenty (20) days after the end of each month end during
the Collection Period, Buyer shall make a payment to Seller equal to the amount
of all collections of Seller Accounts Receivable during the preceding month,
less any commissions then owing and paid (but not paid or prorated for at
Closing) to salespersons or agencies for ads to which such collected Seller
Accounts Receivable related, and no later than twenty (20) days following the
conclusion of the Collection Period, Buyer shall make a payment to Seller equal
to the amount of all collections of Seller Accounts Receivable during Collection
Period not previously paid to Seller. At the end of the Collection Period, any
remaining Seller Accounts Receivable shall be returned to Seller for collection.
ARTICLE 9
COVENANTS OF SELLER
-------------------
9.1 Seller's Pre-Closing Covenants'. Seller covenants and agrees with
-------------------------------
respect to the Stations that, between the date hereof and the Closing Date,
except as expressly permitted by this Agreement or with the prior written
consent of Buyer, which shall not be unreasonably withheld, Seller shall act in
accordance with the following:
9.1.1 Seller shall conduct the business and operations of the
Stations in the ordinary course of business consistent with past practice;
9.1.2 Seller shall operate the Stations in all material respects in
accordance with FCC rules and regulations and the Stations Licenses and with all
other laws, regulations, rules
17
and orders, and shall not cause or permit by any act, or failure to act, any of
the Stations Licenses or other licenses, permits or authorizations listed in
Schedule 7.4 to expire, be surrendered, adversely modified (other than as set
------------
forth in Schedule 7.4 or as specifically permitted by this Agreement), or
------------
otherwise terminated, or the FCC to institute any proceedings for the
suspension, revocation or adverse modification of any of the Stations Licenses,
or fail to prosecute with due diligence any pending applications to the FCC.
9.1.3 Should any fact relating to Seller which would cause the FCC to
deny its consent to the transactions contemplated by this Agreement come to
Seller's attention, Seller will promptly notify Buyer thereof and will use its
reasonable efforts to take such steps as may be necessary to remove any such
impediment to the FCC's consent to the transactions contemplated by this
Agreement.
9.1.4 Seller shall not, other than in the ordinary course of business
in accordance with past practices: (a) sell, lease or dispose of or commit to
sell, lease or dispose of any of the Station Assets, except as permitted
pursuant to Section 1.1.2 hereof; (b) sell broadcast time on a prepaid basis
with regard to the Stations; (c) change the advertising rates in effect as of
the date hereof; (d) create, assume or permit to exist any Liens or rights
affecting any of the Station Assets, except for those in existence on the date
of this Agreement and disclosed in Schedule 7.8 or Schedule 7.9; or (e) enter in
------------ ------------
any consecutive three-month period, the first such period to commence on the
date hereof, into any contract or contracts with respect to the business or
operation of a Station that would impose an obligation on Buyer in excess of
$50,000 per annum individually or $100,000 per annum in the aggregate without
obtaining Buyer's consent thereto.
9.1.5 In order that Buyer may have full opportunity to make such
investigation as it desires of the affairs of the Stations, Seller shall give or
cause the Stations to give Buyer and Buyer's counsel, accountants, engineers and
other representatives, at Buyer's reasonable request and upon reasonable notice,
full and reasonable access during normal business hours to all of Seller's
personnel, properties, books, Contracts, reports and records, environmental
audits, real estate, buildings and equipment relating to the Stations and, with
Seller's prior consent, which shall not be unreasonably withheld, to the
Stations' employees, and to furnish Buyer with information and copies of all
documents and agreements relating to the Stations and the operation thereof that
Buyer may reasonably request, it being understood that such access, information
and copies may be limited as Seller reasonably deems appropriate in light of
Buyer's and/or its Affiliates ownership or potential ownership of radio stations
that will compete with Seller's or its Affiliates' remaining stations in the
market. The rights of Buyer under this Section 9.1.5 shall be exercised at
Buyer's sole expense and shall not be exercised in such a manner as to interfere
unreasonably with the business of the Stations. Buyer may, at its sole expense
and in a manner that will not disrupt or interfere with the normal business and
operations of the Stations, have access to the Owned Real Estate to conduct an
environmental assessment thereof. The results of the investigation and
environmental assessment provided for in this Section 9.1.5 shall not under any
circumstances give rise to a right on the part of Buyer to terminate this
Agreement, adjust the Purchase Price, or receive any other remedy from Seller,
provided that no inspection or investigation made by or on behalf of Buyer, or
Buyer's failure to make any inspection or investigation, shall affect Seller's
representations and warranties in Section 7.11 hereof or be deemed to constitute
a waiver of any of those representations and warranties.
18
9.1.6 Seller shall use commercially reasonable efforts to obtain any
third party consents necessary for the assignment of any Contract (which shall
not require any payment to any such third party except for such amounts
contemplated by the Contract to be assigned, any amount then owing by Seller to
such third party or the reasonable expenses incurred by such third party in
connection with such assignment).
9.2 Notification. Seller will provide Buyer prompt written notice of
------------
any material change in the information contained in the representations and
warranties made by it in Article 7. Seller agrees to promptly notify Buyer of
any litigation, arbitration or administrative proceeding pending or, to the best
of its knowledge, threatened, which challenges the transactions contemplated
hereby.
9.3 No Inconsistent Action. Seller shall not take any action which is
----------------------
materially inconsistent with its obligations under this Agreement, or take any
action which would cause any representation or warranty of Seller contained
herein to be or become false or invalid or which could unreasonably hinder or
delay the consummation of the transactions contemplated by this Agreement.
9.4 Closing. Subject to Section 10.8 and Article 12 hereof, on the
-------
Closing Date Seller shall transfer, convey, assign and deliver to Buyer the
Station Assets and the Assumed Liabilities as provided in Articles 1 and 2 of
this Agreement.
9.5 Cooperation with Respect to Financial Information. Between the date
-------------------------------------------------
hereof and the Closing Date, Seller shall cooperate and shall cause its
independent accounting firm to cooperate with Buyer, at Buyer's expense
(including reimbursement of actual expenses reasonably incurred by Seller in
connection with such cooperation), to make available to Buyer such audited
financial information, or such as yet unaudited financial information in
connection with auditing the same, with respect to the Stations as Buyer
reasonably requests. Notwithstanding the foregoing in this Section 9.5, the
results of, or information obtained in connection with, such investigation shall
not under any circumstances give rise to a right on the part of Buyer to
terminate this Agreement, adjust the Purchase Price, or receive any other remedy
from Seller.
ARTICLE 10
JOINT COVENANTS
---------------
Buyer and Seller hereby covenant and agree that between the date hereof and
the Closing Date, each shall act in accordance with the following:
10.1 Confidentiality.
---------------
10.1.1 Subject to the requirements of applicable law, Buyer and
Seller shall each keep confidential all information obtained by it with respect
to the other parties hereto in connection with this Agreement and the
negotiations preceding this Agreement ("Confidential Information"); provided
that, the parties hereto may furnish such Confidential Information to its
19
employees, agents and representatives who need to know such Confidential
Information (including its financial and legal advisers, its banks and other
lenders) (collectively, "Representatives"); provided however, the disclosing
party shall be responsible for all actions or omissions of such Representatives
with regard to Representatives' breach of this Section 10.1. Each party hereto
shall, and shall cause each of such party's Representatives to, use the
Confidential Information solely in connection with the transactions contemplated
by this Agreement, and not for any competitive purpose or advantage detrimental
to the other party hereto or its Affiliates. If the transactions contemplated
hereby are not consummated for any reason, each party shall (i) return to such
other party hereto, without retaining a copy thereof, any schedules, documents
or other written information (and any derivative work product) obtained from
such other party in connection with this Agreement and the transactions
contemplated hereby, and (ii) provide, upon request, a written confirmation that
all Confidential Information (and derivative work product) has been returned to
the other party, and that the Confidential Information was used solely in
connection with the transactions contemplated by this Agreement.
10.1.2 Notwithstanding anything contained in Section 10.1.1, no
party shall be required to keep confidential or return any Confidential
Information which: (a) is known or available through other lawful sources, not
bound by a confidentiality agreement with the disclosing party; (b) is or
becomes publicly known through no fault of the receiving party or its agents;
(c) is required to be disclosed pursuant to an order or request of a judicial or
governmental authority (provided the disclosing party is given reasonable prior
notice of the order or request and the purpose of the disclosure); or (d) is
developed by the receiving party independently of the disclosure by the
disclosing party.
10.1.3 Notwithstanding anything to the contrary in this Agreement,
Buyer, Seller and the Affiliates of either shall, in accordance with their
respective legal obligations, including but not limited to filings permitted or
required by the Securities Act of 1933 and the Securities and Exchange Act of
1934, the NASDAQ National Market and other similar regulatory bodies, make (i)
such press releases and other public statements and announcements ("Releases")
as Buyer, Seller or the Affiliates of either deems necessary and appropriate in
connection with this Agreement and the transactions contemplated hereby, and
(ii) any and all statements Buyer or Seller deems in its sole judgment to be
appropriate in any and all filings, prospectuses and other similar documents.
Buyer and Seller shall each use reasonable efforts to provide the other with a
copy of any Releases before any publication of same; provided that, if the
content of the Release is, in the sole judgment of Buyer or Seller reasonably
exercised, substantially similar to the content of a Release previously
provided, the issuer of such release shall have no obligation to provide the
other party with a copy of such Release. Each party may make comments to the
other with respect to any such Releases provided to it, provided however, the
party receiving such comments is not required to incorporate any such comments
into the Releases.
10.2 Cooperation. Subject to express limitations contained elsewhere
-----------
herein, Buyer and Seller agree to cooperate fully with one another in taking any
reasonable actions (including without limitation, reasonable actions to obtain
the required consent of any governmental instrumentality or any third party)
necessary or helpful to accomplish the transactions contemplated by this
Agreement, including but not limited to the satisfaction of any condition to
closing set forth herein.
20
10.3 Control of Stations. Buyer shall not, directly or indirectly,
-------------------
control, supervise or direct the operations of the Stations prior to the
Closing. Such operations, including complete control and supervision of all the
Stations' programs, employees and policies, shall be the sole responsibility of
Seller.
10.4 Consents to Assignment. To the extent that any Contract identified
----------------------
in the Schedules is not capable of being sold, assigned, transferred, delivered
or subleased without the waiver or consent of any third person (including a
government or governmental unit), or if such sale, assignment, transfer,
delivery or sublease or attempted sale, assignment, transfer, delivery or
sublease would constitute a breach thereof or a violation of any law or
regulation, this Agreement and any assignment executed pursuant hereto shall not
constitute a sale, assignment, transfer, delivery or sublease or an attempted
sale, assignment, transfer, delivery or sublease thereof. In those cases where
consents, assignments, releases and/or waivers have not been obtained at or
prior to the Closing to the transfer and assignment to Buyer of the Contracts,
this Agreement and any assignment executed pursuant hereto, to the extent
permitted by law, shall constitute an equitable assignment by Seller to Buyer of
all of Seller's rights, benefits, title and interest in and to the Contracts,
and where necessary or appropriate, Buyer shall be deemed to be Seller's agent
for the purpose of completing, fulfilling and discharging all of Seller's rights
and liabilities arising after the Closing Date under such Contracts. Seller
shall use its best efforts to provide Buyer with the financial and business
benefits of such Contracts (including, without limitation, permitting Buyer to
enforce any rights of Seller arising under such Contracts), and Buyer shall, to
the extent Buyer is provided with the benefits of such Contracts, assume,
perform and in due course pay and discharge all debts, obligations and
liabilities of Seller under such Contracts to the extent that Buyer was to
assume those obligations pursuant to the terms hereof.
10.5 Filings. In addition to the covenants of the parties set forth in
-------
Article 5 hereto, as promptly as practicable after the execution of this
Agreement, Buyer and Seller shall use their reasonable best efforts to obtain,
and to cooperate with each other in obtaining, all authorizations, consents,
orders and approvals of any governmental authority that may be or become
necessary in connection with the consummation of the transactions contemplated
by this Agreement, and to take all reasonable actions to avoid the entry of any
order or decree by any governmental authority prohibiting the consummation of
the transactions contemplated hereby, including without limitation, any reports
or notifications that may be required to be filed with the FCC or to be filed
under the HSR Act with the Federal Trade Commission and the Antitrust Division
of the Department of Justice, and each shall furnish to one another all such
information in its possession as may be necessary for the completion of the
reports or notifications to be filed by the other.
10.6 Employee Matters. Except for the retained employees set forth on
----------------
Schedule 10.6, the parties acknowledge and agree that Buyer shall have the right
-------------
(but not the obligation) to interview and to elect which of the employees, if
any, of Seller set forth on Schedule 7.13 that it will hire (who, once hired,
-------------
shall be referred to as "Hired Employees"). In that regard and solely with
respect to the employees set forth on Schedule 7.13, Seller shall provide Buyer
-------------
access to its personnel records and personnel files, and shall provide such
other information regarding such employees as Buyer may reasonably request prior
to the Closing Date. Seller shall be
21
responsible for the payment of all compensation and accrued employee benefits
payable to all employees of Seller through the Closing Date. Buyer shall cause
all Hired Employees as of the Closing Date to be eligible to participate in its
"employee welfare benefit plans" and "employee pension benefit plans" (as
defined in Section 3(1) and 3(2) of ERISA, respectively) of Buyer in which
similarly situated employees of Buyer are generally eligible to participate;
provided, however, that, to the extent permitted under such plans with respect
-------- -------
to Hired Employees, all Hired Employees and their spouses and dependents shall
be eligible for coverage immediately after the Closing Date and shall not be
excluded from coverage on account of any condition that was not a pre-existing
condition for such person when employed by Seller. For purposes of any length of
service requirements, waiting periods, vesting periods or differential benefits
based on length of service in any such plan for which a Hired Employee may be
eligible after the Closing, Buyer shall ensure that service by such Hired
Employee with Seller shall be deemed to have been service with the Buyer. In
addition, Buyer shall ensure that each Hired Employee receives credit under any
welfare benefit plan of Buyer for any deductibles or co-payments paid by such
Hired Employee and his or her dependents for the current plan year under a plan
maintained by Seller.
10.7 Section 1031 Asset Exchange. Buyer acknowledges that Seller may
---------------------------
designate that the transfer of the Station Assets contemplated by this Agreement
will be part of an exchange of assets that will qualify, pursuant to Section
1031 of the Internal Revenue Code and regulations thereunder, as a deferred
like-kind exchange by Seller. It is expressly acknowledged that Seller, its
assignee or transferee, may, at or prior to Closing, assign its rights (in
whole or in part) under this Agreement to a qualified intermediary as defined in
Treasury regulation section 1.1031(k)-1(g)(4), or a similar entity or
arrangement ("Qualified Intermediary"), subject to all of Seller's rights and
obligations herein and shall promptly provide written notice of such assignment
to Buyer. Buyer shall cooperate with the reasonable requests of the Seller's
Qualified Intermediary in arranging and effecting this exchange and any
additional exchange as would qualify under Section 1031 of the Internal Revenue
Code. Without limiting the generality of the foregoing, if Seller has given
notice of its intention to effect an exchange using a Qualified Intermediary,
Buyer shall promptly provide Seller with written acknowledgment of such notice.
If requested by Seller, Buyer shall pay the Purchase Price for the Station
Assets to the Qualified Intermediary of Seller (and not to Seller), and such
payment shall satisfy the obligations of Buyer to make payment of the Purchase
Price herein. Seller's assignment to a Qualified Intermediary will not relieve
Seller of any of its duties or obligations herein. Except for the obligations
of Buyer set forth in this Section, Buyer shall not have any liability or
obligation to Seller for the failure of the contemplated exchange to qualify as
a like kind exchange under Section 1031 of the Internal Revenue Code unless such
failure is the result of the material breach by Buyer of its representations,
warranties, covenants and obligations herein.
10.8 Trust. Seller and Buyer hereby agree that Seller may, at
-----
Seller's option and with prior FCC approval, assign the assets and licenses of
the Stations to the Trustee who would operate and maintain the Stations between
the closing under the Jacor Agreement and the Closing Date hereunder, pursuant
to the Trust, and upon such circumstances, the Trustee would be charged with
consummation of the transactions contemplated hereunder on Seller's behalf and
would be required to perform Seller's duties and obligations hereunder with
respect to the Station Assets held in the Trust.
22
10.9 Studio Location. For a period not to exceed sixty (60) days from
---------------
and after the Closing Date, Buyer shall be entitled to use the existing studios
located at 0000 Xxxxx Xxxx (the "Existing Studios") in common with the FCC
licensee of WNCX-FM. During such period, Buyer shall pay to the FCC licensee of
WNCX-FM Buyer's proportionate share of the rent and customary pass-throughs of
costs or expenses incurred in relation to the Existing Studios, and shall
cooperate with Seller and the FCC licensee of WNCX-FM in the sharing of the
Existing Studios.
10.10 Lease With Purchaser of WNCX-FM. From and after Closing, Buyer
-------------------------------
shall lease to the FCC licensee of WNCX-FM a portion of the WERE Tower Property
comprised of real property and transmitter building space for: (a) the tower,
satellite dish and transmission facilities of WNCX-FM, in perpetuity rent-free
(but with customary pass-throughs of proportionate costs or expenses) and
together with rights of access to the lessee and other terms customary or
reasonably appropriate for a lease of such kind, (b) the transmission facilities
of Educational Television Association of Metropolitan Cleveland under leases
relating to WVIZ-TV, and (c) the transmission facilities of Ohio Music
Corporation pursuant to Agreements dated on or about 12/4/81 and 8/20/85. Such
lease (the "WNCX Lease") shall be executed and delivered at Closing by Buyer, as
lessor, and either Seller or the licensee of WNCX-FM, as lessee, and shall be
freely assignable to any subsequent licensee of WNCX-FM. Seller agrees to use
its best efforts to assist Buyer to complete negotiation of the WNCX Lease.
ARTICLE 11
CONDITIONS OF CLOSING BY BUYER
------------------------------
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, on or prior to the Closing Date or such earlier date as
specifically provided below, of each of the following conditions:
11.1 Representations, Warranties and Covenants.
-----------------------------------------
11.1.1 All representations and warranties of Seller made in this
Agreement or in any Exhibit, Schedule or document delivered pursuant hereto,
shall be true and complete in all material respects as of the date hereof and on
and as of the Closing Date as if made on and as of that date.
11.1.2 All of the terms, covenants and conditions to be complied with
and performed by Seller on or prior to the Closing Date shall have been complied
with or performed in all material respects.
11.1.3 Buyer shall have received a certificate, dated as of the
Closing Date, from Seller, executed by an authorized officer of Seller to the
effect that: (a) the representations and warranties of Seller contained in this
Agreement are true and complete in all material respects on and as of the
Closing Date as if made on and as of that date; and (b) Seller has complied with
or performed in all material respects all terms, covenants and conditions to be
complied with or performed by it on or prior to the Closing Date.
23
11.2 Governmental Consents. The FCC Consent and DOJ Consent shall have
---------------------
been obtained, and neither consent shall impose any condition materially adverse
to Buyer, and any waiting period under the HSR Act with respect to the
transactions contemplated by this Agreement shall have elapsed or been
terminated.
11.3 Trust. If the Stations are transferred into the Trust, the Trustee
-----
shall have assigned, or shall assign concurrently with the Transfer from the
Trust to Buyer, the assets and licenses of the Stations which comprise all or
part of the Station Assets to Buyer in accordance with this Agreement.
11.4 Governmental Authorizations. Seller shall be the holder of the
---------------------------
Stations Licenses, and there shall not have been any modification (other than as
specifically permitted by this Agreement) of any of such licenses, permits and
other authorizations which has a material adverse effect on the Stations or the
operations thereof.
11.5 Adverse Proceedings. No suit, action, claim or governmental
-------------------
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against,
any party hereto which: (a) would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms; (b) questions the validity or legality of any transaction contemplated
hereby; (c) seeks to enjoin any transaction contemplated hereby; or (d) a
petition of bankruptcy by or against Seller, an assignment by Seller for the
benefit of its creditors, or other similar proceeding.
ARTICLE 12
CONDITIONS OF CLOSING BY SELLER
-------------------------------
The obligations of Seller hereunder are, at its option, subject to
satisfaction, on or prior to the Closing Date, of each of the following
conditions:
12.1 Representations, Warranties and Covenants.
-----------------------------------------
12.1.1 All representations and warranties of Buyer made in this
Agreement or in any Exhibit, Schedule or document delivered pursuant hereto,
shall be true and complete in all material respects as of the date hereof and on
and as of the Closing Date as if made on and as of that date, except for changes
expressly permitted or contemplated by the terms of this Agreement.
12.1.2 All the terms, covenants and conditions to be complied with
and performed by Buyer on or prior to the Closing Date shall have been complied
with or performed in all material respects.
12.1.3 Seller shall have received a certificate, dated as of the
Closing Date, executed by an authorized officer of Buyer, to the effect that:
(a) the representations and warranties of Buyer contained in this Agreement are
true and complete in all material respects on and as of the Closing Date as if
made on and as of that date; and (b) that Buyer has complied
24
with or performed in all material respects all terms, covenants and conditions
to be complied with or performed by it on or prior to the Closing Date.
12.2 Governmental Consents. The FCC Consent and DOJ Consent shall have
---------------------
been obtained, and neither consent shall impose any condition materially adverse
to Seller, and any waiting period under the HSR Act with respect to the
transactions contemplated by this Agreement shall have elapsed or been
terminated.
12.3 Adverse Proceedings. No suit, action, claim or governmental
-------------------
proceeding shall be pending against, and no order, decree or judgment of any
court, agency or other governmental authority shall have been rendered against,
any party hereto which: (a) would render it unlawful, as of the Closing Date, to
effect the transactions contemplated by this Agreement in accordance with its
terms; (b) questions the validity or legality of any transaction contemplated
hereby; (c) seeks to enjoin any transaction contemplated hereby; or (d) is a
petition of bankruptcy by or against Buyer, an assignment by Buyer for the
benefit of its creditors, or other similar proceeding.
12.4 Jacor Closing. The transactions that are the subject of the Jacor
-------------
Agreement shall have been consummated.
12.5 Trust. If the Stations are transferred into the Trust, the Trustee
-----
shall have assigned, or shall assign concurrently with the Transfer from the
Trust to Buyer, the assets and licenses of the Stations which comprise all or
part of the Station Assets to Buyer in accordance with this Agreement.
12.6 WNCX Lease. The form of the WNCX Lease shall have been agreed upon
----------
to Seller's reasonable satisfaction.
ARTICLE 13
TRANSFER TAXES; FEES AND EXPENSES
---------------------------------
13.1 Expenses. Except as set forth in Section 13.2 and 13.3 hereof or
--------
otherwise expressly set forth in this Agreement, each party hereto shall be
solely responsible for all costs and expenses incurred by it in connection with
the negotiation, preparation and performance of and compliance with the terms of
this Agreement including, but not limited to the costs and expenses incurred
pursuant to Article 5 hereof and the fees and disbursements of counsel and other
advisors.
13.2 Transfer Taxes and Similar Charges. All costs of transferring the
----------------------------------
Station Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, and any excise, sales or use taxes,
shall be paid by Buyer.
13.3 Governmental Filing or Grant Fees. Any filing or grant fees
---------------------------------
imposed by any governmental authority the consent of which or the filing with
which is required for the consummation of the transactions contemplated hereby
shall be paid equally by Buyer and Seller; provided however, that any HSR Act
filing fees and expenses shall be paid by Buyer.
25
ARTICLE 14
DOCUMENTS TO BE DELIVERED AT CLOSING
------------------------------------
14.1 Seller's Documents'. At the Closing, Seller shall deliver or cause
-------------------
to be delivered to Buyer the following:
14.1.1 Certified resolutions of the Board of Directors of Seller
approving the execution and delivery of this Agreement and authorizing the
consummation of the transactions contemplated hereby;
14.1.2 A certificate of Seller, dated the Closing Date, in the form
described in Section 11.1.3;
14.1.3 Such certificates, bills of sale, assignments, general
warranty deeds, documents of title and other instruments of conveyance,
assignment and transfer (including without limitation any necessary consents to
conveyance, assignment or transfer), and Lien releases, all in form satisfactory
to Buyer, as shall be effective to vest in Buyer good and marketable title in
and to the Station Assets, free and clear of all Liens, except for Permitted
Liens.
14.1.4 An Assignment and Assumption Agreement in the form of Exhibit
-------
C effectuating the assignment and assumption of the Assumed Liabilities (the
-
"Assignment and Assumption Agreement").
14.1.5 At the time and place of Closing, originals and all copies of
all program, operations, transmission or maintenance logs and all other records
required to be maintained by the FCC with respect to the Stations, including the
public files of the Stations, shall be left at the Stations and thereby
delivered to Buyer; and
14.1.6 Such additional information, materials, agreements, documents
and instruments as Buyer and its counsel may reasonably request in order to
consummate the Closing.
14.2 Buyer's Documents'. At the Closing, Buyer shall deliver or cause
------------------
to be delivered to Seller the following:
14.2.1 Certified resolutions of the Board of Directors of Buyer
approving the execution and delivery of this Agreement and authorizing the
consummation of the transactions contemplated hereby;
14.2.2 A certificate of Buyer, dated the Closing Date, in the form
described in Section 12.1.3.
14.2.3 The Assignment and Assumption Agreement;
26
14.2.4 The Purchase Price in accordance with Section 3.1 hereof;
14.2.5 Such additional information, materials, agreements, documents
and instruments as Seller and its counsel may reasonably request in order to
consummate the Closing;
14.2.6 The WNCX Lease; and
14.2.7 An agreement between Arbitron and Radio One, Inc. for Arbitron
services to the Stations from Closing through December 31, 2000 at the rates
already disclosed and on the standard Arbitron form of agreement.
ARTICLE 15
SURVIVAL; INDEMNIFICATION; ETC.
-------------------------------
15.1 Survival of Representations, Etc. It is the express intention and
--------------------------------
agreement of the parties to this Agreement that all covenants and agreements
(together, "Agreements") and all representations and warranties (together,
"Warranties") made by Buyer and Seller in this Agreement shall survive the
Closing (regardless of any knowledge, investigation, audit or inspection at any
time made by or on behalf of Buyer or Seller) for a period of six (6) months
from the Closing Date. The right of any party to recover Damages (as defined in
Section 15.2.1) pursuant to Section 15.2 shall not be affected by the expiration
of any Agreements or Warranties as set forth herein, provided and subject to the
condition that notice of the existence of any Damages (but not necessarily the
fixed amount of any such Damages) has been given by the indemnified party to the
indemnifying party prior to such expiration. Notwithstanding the foregoing in
this Section 15.1, the provisions of Section 1.4 shall survive Closing for the
period set forth therein.
15.2 Indemnification.
---------------
15.2.1 From and after the Closing, Seller shall defend, indemnify and
hold harmless Buyer from and against any and all losses, costs, damages,
liabilities and expenses, including reasonable attorneys' fees and expenses
("Damages") incurred by Buyer arising out of or related to: (a) any breach of
the Agreements or Warranties given or made by Seller in this Agreement; and (b)
the conduct of the business and operations of the Stations or any portion
thereof or the use or ownership of any of the Station Assets prior to the
Closing Date; provided, however, that (i) Seller shall have no liability to
-----------------
Buyer hereunder until, and only to the extent that, Buyer's aggregate Damages
exceed Three Hundred Seventy-Five Thousand Dollars ($375,000), and (ii) the
maximum liability of Seller hereunder shall be One Million Five Hundred Thousand
Dollars ($1,500,000). Notwithstanding the foregoing, the limitations set forth
in Section 15.2.1(i) shall not apply to Seller's obligations pursuant to Section
1.4 and Schedule 7.8 ((S) C.2).
27
15.2.2 From and after the Closing, Buyer shall defend, indemnify and
hold harmless Seller from and against any and all Damages incurred by Seller
arising out of or related to: (a) any breach of the Agreements or Warranties
given or made by Buyer in this Agreement; (b) the Assumed Liabilities; and (c)
the conduct of the business and operations of the Stations or any portion
thereof or the use or ownership of any of the Station Assets on or after the
Closing Date; provided, however, that (i) Buyer shall have no liability to
-------- -------
Seller hereunder until, and only to the extent that, Seller's aggregate Damages
exceed Three Hundred Seventy-Five Thousand Dollars ($375,000), and (ii) the
maximum liability of Buyer hereunder shall be One Million Five Hundred Thousand
Dollars ($1,500,000). Notwithstanding the foregoing, the limitations set forth
in Section 15.2.2(i) shall not apply to Buyer's obligations pursuant to Sections
1.4 and 2.1.
15.3 Procedures; Third Party and Direct Indemnification Claims. The
---------------------------------------------------------
indemnified party agrees to give prompt written notice to the indemnifying party
of any demand, suit, claim or assertion of liability by third parties or other
circumstances that could give rise to an indemnification obligation hereunder
against the indemnifying party (hereinafter collectively "Claims," and
individually a "Claim"), it being understood that the failure to give such
notice or delaying such notice shall not affect the indemnified party's right to
indemnification and the indemnifying party's obligation to indemnify as set
forth in this Agreement, except to the extent the indemnifying party's ability
to remedy, contest, defend or settle with respect to such Claim is thereby
prejudiced.
The obligations and liabilities of the parties hereto with respect to their
respective indemnities pursuant to Section 15.2 resulting from any Claim shall
be subject to the following additional terms and conditions:
15.3.1 The indemnifying party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense or opposition
to such Claim.
15.3.2 In the event that the indemnifying party shall elect not to
undertake such defense or opposition, or within twenty (20) days after written
notice, which notice shall include sufficient description of background
information explaining the basis for such Claim, shall fail to undertake to
defend or oppose, the indemnified party (upon further written notice to the
indemnifying party) shall have the right to undertake the defense, opposition,
compromise or settlement of such Claim, by counsel or other representatives of
its own choosing, on behalf of and for the account and risk of the indemnifying
party (subject to the right of the indemnifying party to assume defense of or
opposition to such Claim at any time prior to settlement, compromise or final
determination thereof).
15.3.3 Anything in this Section 15.3 to the contrary notwithstanding:
(a) the indemnified party shall have the right, at its own cost and expense, to
participate in the defense, opposition, compromise or settlement of the Claim;
(b) the indemnifying party shall not, without the indemnified party's written
consent, settle or compromise any Claim or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim; and (c) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its
28
sole cost and expense, shall have the right to consult with the indemnifying
party and its counsel or other representatives concerning such Claim and the
indemnifying party and the indemnified party and their respective counsel or
other representatives shall cooperate in good faith with respect to such Claim.
15.3.4 The parties agree that all claims not disputed by the
indemnifying party shall be paid by the indemnifying party within thirty (30)
days after receiving notice of the Claim. "Disputed Claims" shall mean claims
for Damages by an indemnified party which the indemnifying party objects to in
writing within twenty (20) days after receiving notice of the Claim. In the
event there is a Disputed Claim with respect to any Damages, the indemnifying
party shall be required to pay the indemnified party the amount of such Damages
for which the indemnifying party has, pursuant to a final determination, been
found liable within ten (10) days after there is a final determination with
respect to such Disputed Claim. As used in this Section 15.3.4, a final
determination of a Disputed Claim shall be (i) a judgment of any court
determining the validity of a Disputed Claim, if no appeal is pending from such
judgment and if the time to appeal therefrom has elapsed; (ii) an award of any
arbitration determining the validity of such disputed claim, if there is not
pending any motion to set aside such award and if the time within which to move
to set aside such award has elapsed; (iii) a written termination of the dispute
with respect to such claim signed by all of the parties thereto or their
attorneys; (iv) a written acknowledgment of the indemnifying party that it no
longer disputes the validity of such claim; or (v) such other evidence of final
determination of a disputed claim as shall be acceptable to the parties.
15.3.5 No undertaking of defense or opposition to a Claim shall be
construed as an acknowledgment by such party that it is liable to the party
claiming indemnification with respect to the Claim at issue or other similar
Claims.
ARTICLE 16
TERMINATION RIGHTS
------------------
16.1 Termination. This Agreement may be terminated at any time prior to
-----------
Closing as follows:
16.1.1 Upon the mutual written consent of Buyer and Seller on such
terms and conditions as so agreed;
16.1.2 By written notice of Buyer to Seller if Seller breaches in any
material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the date of notice of breach or default
served by Buyer; provided, however, that with respect to breaches which cannot
reasonably be cured within such thirty day period, Buyer shall have no right to
terminate pursuant to this paragraph so long as Seller is diligently continuing
to cure such breach and such breach or default is cured within forty-five (45)
days of the date of notice of breach or default;
29
16.1.3 By written notice of Seller to Buyer if Buyer breaches in any
material respect any of its representations or warranties or defaults in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the date of notice of breach or default
served by Buyer; provided, however, that with respect to breaches which cannot
reasonably be cured within such thirty day period, Seller shall have no right to
terminate pursuant to this paragraph so long as Buyer is diligently continuing
to cure such breach and such breach or default is cured within forty-five (45)
days of the date of notice of breach or default;
16.1.4 By written notice of Buyer to Seller, or by Seller to Buyer,
if the FCC denies the FCC Application or designates it for a trial-type hearing;
16.1.5 By written notice of Buyer to Seller, or by Seller to Buyer,
if any court of competent jurisdiction shall have issued an order, decree or
ruling or taken any other action restraining, enjoining or otherwise prohibiting
the transactions contemplated by this Agreement;
16.1.6 By written notice of Seller to Buyer if the Closing shall not
have been consummated on or before August 1, 1999;
16.1.7 By written notice of Seller to Buyer if the Jacor Agreement is
terminated or expires pursuant to its terms;
16.1.8 By written notice of Seller to Buyer if the DOJ Consent is not
obtained, or is denied or rescinded;
16.1.9 By written notice of Seller to Buyer, or of Buyer to Seller,
if the Closing has not occurred on or before May 1, 2000; or
16.1.10 By written notice of Seller to Buyer if, at a time when the
conditions set forth in Article 11 have been satisfied, the condition set forth
in Section 12.6 has not been satisfied.
Notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
16.2. Liability. Except as set forth in Section 16.4 below, the
---------
termination of this Agreement under Section 16.1 shall not relieve any party of
any liability for breach of this Agreement prior to the date of termination.
16.3. Monetary Damages, Specific Performance and Other Remedies. The
---------------------------------------------------------
parties recognize that if either party refuses to consummate the Closing
pursuant to the provisions of this Agreement or either party otherwise breaches
("Breaching Party") such that the Closing has not occurred, monetary damages
alone will not be adequate to compensate the non-breaching party ("Non-Breaching
Party") for its injury. Such Non-Breaching Party shall therefore be entitled to
30
obtain specific performance of the terms of this Agreement in addition to any
other remedies, including but not limited to monetary damages, that may be
available to it; provided, however, that Seller may elect to recover liquidated
-------- -------
damages in lieu of obtaining specific performance, or vice versa, in accordance
with Section 16.4. If any action is brought by the Non-Breaching Party to
enforce this Agreement, the Breaching Party shall waive the defense that there
is an adequate remedy at law. In the event of a default by the Breaching Party
which results in the filing of a lawsuit for damages, specific performance, or
other remedy, the Non-Breaching Party shall be entitled to reimbursement by the
Breaching Party of reasonable legal fees and expenses incurred by the Non-
Breaching Party; provided that, the Non-Breaching Party is successful in such
lawsuit.
16.4 Seller's Liquidated Damages'. Subject to Section 16.3, in the event
----------------------------
this Agreement is terminated by Seller due to a material breach hereof by Buyer,
and Seller is not at that time in material breach hereof, then Buyer shall pay
to Seller the Escrow Deposit, plus interest accrued thereon, which amount shall
constitute liquidated damages. It is understood and agreed that such liquidated
damages amount represents Buyer's and Seller's reasonable estimate of actual
damages and does not constitute a penalty. Except in the case of the remedy of
specific performance and damages as set forth in Section 16.3, which, if chosen
by Seller, shall preclude Seller from receiving liquidated damages, recovery of
liquidated damages shall be the sole and exclusive remedy of the Seller against
the Buyer as a result of the Buyer's material breach hereof, regardless of the
actual amount of damages sustained, and all other remedies are deemed waived by
the Seller.
16.5 Survival. Notwithstanding anything contained herein to the
--------
contrary, Sections 10.1 and 13.1 shall survive any termination of this
Agreement.
ARTICLE 17
MISCELLANEOUS PROVISIONS
------------------------
17.1 Casualty Loss. In the event any loss or damage of the Station
-------------
Assets exists on the Closing Date, Buyer and Seller shall consummate the
transaction on the Closing Date and Seller shall assign to Buyer the proceeds of
any insurance payable to Seller on account of such damage or loss.
17.2 Certain Interpretive Matters and Definitions. Unless the context
--------------------------------------------
otherwise requires: (a) all references to Sections, Articles, Schedules or
Exhibits are to Sections, Articles, Schedules or Exhibits of or to this
Agreement; (b) each term defined in this Agreement has the meaning assigned to
it; (c) each accounting term not otherwise defined in this Agreement has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect on the date hereof; (d) "or" is disjunctive but not
necessarily exclusive; (e) words in the singular include the plural and vice
versa; (f) the term "Affiliate" has the meaning given it in Rule 12b-2 of
Regulation 12B under the Securities Exchange Act of 1934, as amended; and (g)
all references to "$" or dollar amounts will be to lawful currency of the United
States of America.
31
17.3 Further Assurances.
------------------
17.3.1 Generally. After the Closing, Seller shall from time to time,
---------
at the request of and without further cost or expense to Buyer, execute and
deliver such other instruments of conveyance and transfer and take such other
actions as may reasonably be requested in order to more effectively consummate
the transactions contemplated hereby to vest in Buyer good title to the Station
Assets, and Buyer shall from time to time, at the request of and without further
cost or expense to Seller, execute and deliver such other instruments and take
such other actions as may reasonably be requested in order more effectively to
relieve Seller of any obligations being assumed by Buyer hereunder.
17.3.2 Cooperation with Respect to Financial and Tax Matters. From
-----------------------------------------------------
the date of Closing, and for a period of three (3) years thereafter, Seller and
Buyer shall cooperate, and each shall cause its respective independent
accounting firm to cooperate, at the expense (including reimbursement of actual
expenses reasonably incurred by the party from whom such cooperation is
requested in connection with such cooperation) of the party making a request, to
provide such information as the other party hereto shall reasonably request for
preparation of documentation to fulfill its reporting requirements to
governmental agencies, including with respect to income, franchise, sales, use,
property, excise, payroll and other tax returns.
17.4 Benefit and Assignment. This Agreement shall be binding upon and
----------------------
shall inure to the benefit of the parties hereto and their respective successors
and assigns. Subject to the provisions of Section 10.7 with respect to the
Seller assigning its rights (in whole or in part) under this Agreement to a
Qualified Intermediary, and provided that Seller shall be permitted to sell,
assign and/or transfer some or all of the Station Assets and/or this Agreement
(in whole or in part) to its designee, assignee, trustee or other entity if it
determines that it would be advisable to make such a transfer in order to make
more certain or otherwise facilitate the consummation of the transactions
contemplated hereby or the transactions contemplated by the Jacor Agreement
("Permitted Assignment"), neither party may voluntarily or involuntarily assign
its interest under this Agreement without the prior written consent of the other
party hereto. Buyer shall not be permitted to assign its rights under this
Agreement without the express written consent of Seller, provided that Buyer may
assign this Agreement to its primary lenders under its June 30, 1998 Credit
Agreement, or any successor Credit Agreement, as collateral for any indebtedness
incurred pursuant to such Credit Agreement. Buyer agrees with respect to any
Permitted Assignment that it shall take all such actions as are reasonably
requested by Seller to effectuate such Permitted Assignment, including but not
limited to cooperating in any appropriate filings with the FCC or other
governmental authorities. All covenants, agreements, statements,
representations, warranties and indemnities in this Agreement by and on behalf
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto.
17.5 Amendments. No amendment, waiver of compliance with any provision
----------
or condition hereof or consent pursuant to this Agreement shall be effective
unless evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
32
17.6 Headings. The headings set forth in this Agreement are for
--------
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
17.7 Governing Law. The construction and performance of this Agreement
-------------
shall be governed by the laws of the State of Ohio without giving effect to the
choice of law provisions thereof. Any action, suit or proceeding brought by any
party to this Agreement relating to or arising out of this Agreement or any
other agreement, instrument, certificate or other document delivered pursuant
hereto (or the enforcement hereof or thereof) must be brought and prosecuted as
to all parties in, and each of the parties hereby consents to service of
process, personal jurisdiction and venue in, the state and Federal courts of
general jurisdiction located in Xxxxxxxx County, Ohio.
17.8 Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing, including by
facsimile, and shall be deemed to have been duly delivered and received on the
date of personal delivery, on the third day after deposit in the U.S. mail if
mailed by registered or certified mail, postage prepaid and return receipt
requested, on the day after delivery to a nationally recognized overnight
courier service if sent by an overnight delivery service for next morning
delivery or when dispatched by facsimile transmission (with the facsimile
transmission confirmation being deemed conclusive evidence of such dispatch) and
shall be addressed to the following addresses, or to such other address as any
party may request, in the case of Seller, by notifying Buyer, and in the case of
Buyer, by notifying Seller:
If to Seller: Clear Channel Broadcasting, Inc.
Clear Channel Broadcasting Licenses, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Senior Vice President/Legal Affairs
Fax: 000-000-0000
and Jacor Communications, Inc.
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Senior Vice President and General Counsel
Fax: 000-000-0000
Copy to: Wiley, Rein & Fielding
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
33
To Buyer: Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
CEO/President
Fax: 000-000-0000
Copies to: Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Fax: 000-000-0000
Radio One, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Fax: 000-000-0000
17.9 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
17.10 No Third Party Beneficiaries. Nothing herein expressed or implied
----------------------------
is intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
17.11 Severability. The parties agree that if one or more provisions
------------
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
17.12 Entire Agreement. This Agreement and the Exhibits hereto embody
----------------
the entire agreement and understanding of the parties hereto and supersede any
and all prior agreements, arrangements and understandings relating to the
matters provided for herein.
[SIGNATURES ON FOLLOWING PAGE]
34
SIGNATURE PAGE FOR ASSETS PURCHASE AGREEMENT
--------------------------------------------
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
SELLER:
CLEAR CHANNEL BROADCASTING, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
CLEAR CHANNEL BROADCASTING LICENSES, INC.
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
BUYER:
RADIO ONE, INC.
By: ____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
