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EXHIBIT 10.10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of June 19,
2000 among the company or companies designated as Seller on the signature page
hereto (collectively, "Seller") and the company or companies designated as Buyer
on the signature page hereto (collectively, "Buyer").
RECITALS
A. Seller owns and operates the following radio broadcast stations (the
"Stations" and each a "Station") pursuant to certain authorizations issued by
the Federal Communications Commission (the "FCC"):
KKFR(FM), Glendale, Arizona
KXPK-FM, Evergreen, Colorado
B. Subject to the terms and conditions set forth herein, Buyer desires
to acquire the Station Assets (defined below).
C. Clear Channel Communications, Inc, CCU Merger Sub, Inc. and AMFM
Inc. (Seller's parent) are parties to an Agreement and Plan of Merger dated
October 2, 1999 (the "AMFM Agreement").
AGREEMENT
NOW, THEREFORE, taking the foregoing into account, and in consideration
of the mutual covenants and agreements set forth herein, the parties, intending
to be legally bound, hereby agree as follows:
1 ARTICLE: PURCHASE OF ASSETS
Station Assets. On the terms and subject to the conditions hereof, on
the Closing Date (defined below), Seller shall sell, assign, transfer, convey
and deliver to Buyer, and Buyer shall purchase and acquire 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, which are used exclusively in the operation of the
Stations and specifically described in this Section 1.1, but excluding the
Excluded Assets as hereafter defined (the "Station Assets"):
(a) all licenses, permits and other authorizations which are issued to Seller by
the FCC with respect to the Stations (the "FCC Licenses") and described on
Schedule 1.1(a), including any renewals or modifications thereof between the
date hereof and Closing;
(b) all equipment, electrical devices, antennae, cables, tools, hardware, office
furniture and fixtures, office materials and supplies, inventory, motor
vehicles, spare parts and other tangible personal property of every kind and
description which are used exclusively in the operation of the Stations and
listed on Schedule 1.1(b), except any retirements or dispositions
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thereof made between the date hereof and Closing in the ordinary course of
business and consistent with past practices of Seller (the "Tangible Personal
Property");
(c) all Time Sales Agreements and Trade Agreements (both defined in Section
2.1), Real Property Leases (defined in Section 7.7), and other contracts,
agreements, and leases which are used in the operation of the Stations and
listed on Schedule 1.1(c), together with all contracts, agreements, and leases
made between the date hereof and Closing in the ordinary course of business that
are used in the operation of the Stations (the "Station Contracts");
(d) all of Seller's rights in and to the Stations' call letters and Seller's
rights in and to the trademarks, trade names, service marks, franchises,
copyrights, computer software, programs and programming material, jingles,
slogans, logos, and other intangible property, and goodwill related thereto,
which are used exclusively in the operation of the Stations and listed on
Schedule 1.1(d) (the "Intangible Property");
(e) 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, including the Stations' local public files, programming information
and studies, blueprints, technical information and engineering data and logs,
but excluding records relating to Excluded Assets (defined below); and
(f) any real property which is used in the operation of the Stations (including
any of Seller's appurtenant easements and improvements located thereon) and
described on Schedule 1.1(f) (the "Real Property").
The Station Assets shall be transferred to Buyer free and clear of
liens, claims and encumbrances ("Liens") except for (i) Assumed Obligations
(defined 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, (iii) such liens,
easements, rights of way, building and use restrictions, exceptions,
reservations and limitations that do not in any material respect detract from
the value of the property subject thereto or impair the use thereof in the
ordinary course of the business of the Stations, and (iv) any items listed on
Schedule 1.1(b) (collectively, "Permitted Liens").
1.1. Excluded Assets. Notwithstanding anything to the contrary contained herein,
the Station Assets shall not include the following assets along with all rights,
title and interest therein (the "Excluded Assets"):
(a) all cash and cash equivalents of Seller, including without limitation
certificates of deposit, commercial paper, treasury bills, marketable
securities, asset or money market accounts and all such similar accounts or
investments;
(b) all accounts receivable or notes receivable arising in the operation of the
Stations prior to Closing;
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(c) 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 Closing;
(d) all Station Contracts that terminate or expire prior to Closing in the
ordinary course of business of Seller;
(e) Seller's name, corporate 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, duplicate copies of the records of
the Stations, and all records not relating exclusively to the operation of the
Stations;
(f) contracts of insurance, and all insurance proceeds or claims made
thereunder;
(g) except as provided in Section 10.4, 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; and
(h) all of Seller's rights, properties and assets described on Schedule 1.2(h),
and all rights, properties and assets not specifically described in Section 1.1.
2 ARTICLE: ASSUMPTION OF OBLIGATIONS
2.1. Assumed Obligations. On the Closing Date, Buyer shall assume the
obligations of Seller (the "Assumed Obligations") arising after Closing under
the Station Contracts, including without limitation all agreements for the sale
of advertising time on the Stations for cash in the ordinary course of business
("Time Sales Agreements") and all agreements for the sale of advertising time on
the Stations for non-cash consideration ("Trade Agreements").
2.2. Retained Obligations. Buyer does not assume or agree to discharge or
perform and will not be deemed by reason 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 the consummation of the
transactions contemplated hereby, 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 Obligations (the "Retained
Obligations").
3 ARTICLE: PURCHASE PRICE
3.1. Purchase Price. In consideration for the sale of the Station Assets to
Buyer, in addition to the assumption of the Assumed Obligations, Buyer shall at
Closing (defined below) deliver to Seller by wire transfer of immediately
available funds the sum of (i) ONE HUNDRED EIGHT MILLION DOLLARS ($108,000,000),
subject to adjustment pursuant to
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Sections 3.3, plus (ii) the Reserve Adjustment (as defined in Section 3.5 below)
(the "Purchase Price").
3.2. Deposit. Within three (3) business days from the date of this Agreement
with no Cure Period as defined below, Buyer shall deposit an amount in cash
equal to 10% of the Purchase Price (the "Deposit") with NationsBank/Bank of
America (the "Escrow Agent") pursuant to the Escrow Agreement (the "Escrow
Agreement") of even date herewith among Buyer, Seller and the Escrow Agent. At
Closing, the Deposit shall be applied to the Purchase Price and any interest
accrued thereon shall be disbursed to Buyer. If this Agreement is terminated by
Seller due to Buyer's failure to consummate the Closing on the Closing Date in
accordance with this Agreement or if this Agreement is otherwise terminated by
Seller pursuant to Section 16.1(c), the Deposit and any interest accrued thereon
shall be disbursed to Seller as partial payment of liquidated damages pursuant
to Section 16.3. If this Agreement is terminated for any other reason, the
Deposit and any interest accrued thereon shall be disbursed to Buyer.
3.3. Prorations and Adjustments. Except as otherwise provided herein, all
deposits, reserves and prepaid and deferred income and expenses relating to the
Stations Assets or the Assumed Obligations and 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. 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 Stations
Assets as contemplated hereby which shall be paid as set forth in Section 13.1),
business and license fees, music and other license fees (including any
retroactive adjustments thereof), utility expenses, amounts due or to become due
under Stations Contracts, 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. 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) calendar days of the Closing
Date. 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 herein
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.
3.4. Allocation. The Purchase Price shall be allocated among the Stations Assets
in a manner as mutually agreed between the parties based upon an appraisal
prepared by Bond & Xxxxxx (whose fees shall be paid one-half by Seller and
one-half by Buyer). 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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3.5. Reserve. At the Closing, Seller shall set aside and pay to Buyer a portion
of the Purchase Price (the "Reserve") equal to the sum of (i) One Million
Dollars ($1,000,000) , plus (ii) the Reserve Adjustment. Buyer shall be entitled
to use the Reserve in its sole discretion in order to satisfy certain
obligations assumed under the Time Sales Agreements, Trade Agreements and
Station Contracts. The Buyer shall be entitled to retain any amounts of the
Reserve which are not so used. As used herein, the "Reserve Adjustment" shall be
the amount in excess of $1,000,000 which Buyer reasonably estimates to be the
cost of terminating the Time Sales Agreements, Trade Agreements and Station
Contracts which Buyer would not otherwise assume but for the convenience of
Seller hereunder. Buyer will provide Seller with written notification of its
preliminary calculation of the amount of the Reserve Adjustment at least three
(3) days prior to Closing and will pay such amount to Seller as part of the
Purchase Price. Buyer will complete its calculation of the Reserve Adjustment
within ninety (90) days after the Closing. To the extent such final calculation
of the Reserve Adjustment is higher than the preliminary calculation, Buyer will
remit such excess to Seller as additional Purchase Price, and Seller will set
aside and pay such amount to Buyer as additional Reserve.
4 ARTICLE: CLOSING
4.1. Closing. The consummation of the sale and purchase of the Stations Assets
(the "Closing") shall occur on a date (the "Closing Date") and at a time and
place designated solely by Seller after FCC Consent (defined below), subject to
satisfaction or waiver of the conditions to Closing contained herein (other than
those to be satisfied at Closing). Seller shall provide Buyer with notice of the
Closing Date at least three (3) business days prior to Closing, however, Seller
reserves the right to extend the Closing Date without penalty. If requested by
Seller, prior to Closing the parties shall hold a pre-closing conference at a
time and place designated by Seller, at which the parties shall provide (for
review only) all documents to be delivered at Closing under this Agreement, each
duly executed but undated, and otherwise confirm their ability to timely
consummate the Closing.
5 ARTICLE: GOVERNMENTAL CONSENTS
6 Closing is subject to and conditioned upon (i) prior FCC consent (the "FCC
Consent") to the assignment of the FCC Licenses to Buyer, (ii) United States
Department of Justice ("DOJ") prior approval (the "DOJ Consent") of the
transactions contemplated hereby, including without limitation any such approval
as may be necessary to enable Seller to consummate the merger under the AMFM
Agreement, and (iii) expiration or termination of any applicable waiting period
("HSR Clearance") under the HSR Act (defined below).
6.1. FCC. On a date designated by Seller, Buyer and Seller shall file an
application with the FCC (the "FCC Application") requesting the FCC Consent.
Buyer and Seller shall diligently prosecute the FCC Application and otherwise
use their best efforts to obtain the FCC Consent as soon as possible. If the FCC
Consent imposes upon Buyer any condition (including without limitation any
divestiture condition), Buyer shall timely comply therewith.
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6.2. HSR. If not previously filed, then on a date designated by Seller after the
execution of this Agreement, Buyer and Seller shall make any required filings
with the Federal Trade Commission and the DOJ pursuant to the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") with respect to
the transactions contemplated hereby (including a request for early termination
of the waiting period thereunder), and shall thereafter promptly respond to all
requests received from such agencies for additional information or
documentation.
6.3. General. Buyer and Seller shall notify each other of all documents filed
with or received from any governmental agency with respect to this Agreement or
the transactions contemplated hereby. Buyer and Seller shall furnish each other
with such information and assistance as such the other may reasonably request in
connection with their preparation of any governmental filing hereunder. If Buyer
becomes aware of any fact relating to it which would prevent or delay the FCC
Consent, the DOJ Consent or HSR Clearance, Buyer shall promptly notify Seller
thereof and take such steps as necessary to remove such impediment, including
but not limited to divesting any Stations and terminating any agreements to
acquire or program or market any Stations.
7 ARTICLE: REPRESENTATIONS AND WARRANTIES OF BUYER
8 Buyer hereby makes the following representations and warranties to Seller:
8.1. Organization and Standing. Buyer is or will be as of the Closing Date duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, and is qualified to do business in each
jurisdiction in which the Station Assets are located. Buyer has the requisite
power and authority to execute and deliver this Agreement and all of the other
agreements and instruments to be executed and delivered by Buyer pursuant hereto
(collectively, the "Buyer Ancillary Agreements"), to consummate the transactions
contemplated hereby and thereby and to comply with the terms, conditions and
provisions hereof and thereof.
8.2. Authorization. The execution, delivery and performance of this Agreement
and the Buyer Ancillary Agreements by Buyer have been duly authorized and
approved by all necessary action of Buyer and do not require any further
authorization or consent of Buyer. This Agreement is, and each Buyer Ancillary
Agreement when executed and delivered by Buyer and the other parties thereto
will be, a legal, valid and binding agreement of Buyer enforceable in accordance
with its respective terms, except in each case as such enforceability may be
limited by bankruptcy, moratorium, insolvency, reorganization or other similar
laws affecting or limiting the enforcement of creditors' rights generally and
except as such enforceability is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
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8.3. No Conflicts. Neither the execution and delivery by Buyer of this Agreement
and the Buyer Ancillary Agreements or the consummation by Buyer of any of the
transactions contemplated hereby or thereby nor compliance by Buyer with or
fulfillment by Buyer of the terms, conditions and provisions hereof or thereof
will: (i) conflict with any organizational documents of Buyer or any law,
judgment, order or decree to which Buyer is subject; or (ii) require the
approval, consent, authorization or act of, or the making by Buyer of any
declaration, filing or registration with, any third party or any foreign,
federal, state or local court, governmental or regulatory authority or body,
except the FCC Consent and DOJ Consent, and, if applicable, HSR Clearance.
8.4
8.5. 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 (the "Communications Act") and the rules, regulations
and policies of the FCC. There are no facts that would, under existing law and
the existing rules, regulations, policies and procedures of the FCC, disqualify
Buyer as an assignee of the FCC Licenses or as the owner and operator of the
Stations. No waiver of any FCC rule or policy is necessary for the FCC Consent
to be obtained. There is no action, suit or proceeding pending or threatened
against Buyer which questions the legality or propriety of the transactions
contemplated by this Agreement or could materially adversely affect Buyer's
ability to perform its obligations hereunder. Buyer has and will have available
on the Closing Date sufficient funds to enable it to consummate the transactions
contemplated hereby.
8.6. No Finder. No broker, finder or other person is entitled to a commission,
brokerage fee or other similar payment in connection with this Agreement or the
transactions contemplated hereby as a result of any agreement or action of Buyer
or any party acting on Buyer's behalf.
9 ARTICLE: REPRESENTATIONS AND WARRANTIES OF SELLER
10 Seller makes the following representations and warranties to Buyer:
10.1. Organization. Seller is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and is
qualified to do business in each jurisdiction in which the Station Assets are
located. Seller has the requisite power and authority to execute and deliver
this Agreement and all of the other agreements and instruments to be executed
and delivered by Seller pursuant hereto (collectively, the "Seller Ancillary
Agreements"), to consummate the transactions contemplated hereby and thereby and
to comply with the terms, conditions and provisions hereof and thereof.
10.2. Authorization. The execution, delivery and performance of this Agreement
and the Seller Ancillary Agreements by Seller have been duly authorized and
approved by all necessary action of Seller and do not require any further
authorization or consent of Seller. This
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Agreement is, and each Seller Ancillary Agreement when executed and delivered by
Seller and the other parties thereto will be, a legal, valid and binding
agreement of Seller enforceable in accordance with its respective terms, except
in each case as such enforceability may be limited by bankruptcy, moratorium,
insolvency, reorganization or other similar laws affecting or limiting the
enforcement of creditors' rights generally and except as such enforceability is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
10.3. No Conflicts. Neither the execution and delivery by Seller of this
Agreement and the Seller Ancillary Agreements or the consummation by Seller of
any of the transactions contemplated hereby or thereby nor compliance by Seller
with or fulfillment by Seller of the terms, conditions and provisions hereof or
thereof will: (i) conflict with any organizational documents of Seller or any
law, judgment, order, or decree to which Seller is subject or, except as set
forth on Schedule 1.1(c), any Station Contract; or (ii) require the approval,
consent, authorization or act of, or the making by Seller of any declaration,
filing or registration with, any third party or any foreign, federal, state or
local court, governmental or regulatory authority or body, except the FCC
Consent and DOJ Consent and, if applicable, HSR Clearance.
10.4. FCC Licenses. Seller (or one of the companies comprising Seller) is the
holder of the FCC Licenses described on Schedule 1.1(a). The FCC Licenses
comprise all of those licenses from the FCC materially necessary to operate the
Stations as currently operated, are in full force and effect and have not been
revoked, suspended, canceled, rescinded or terminated and have not expired.
There is not pending any action by or before the FCC to revoke, suspend, cancel,
rescind or materially adversely modify any of the FCC Licenses (other than
proceedings to amend FCC rules of general applicability), and there is not now
issued or outstanding, by or before the FCC, any order to show cause, notice of
violation, notice of apparent liability, or notice of forfeiture against Seller
with respect to the Stations. The Stations are operating in compliance in all
material respects with the FCC Licenses, the Communications Act, and the rules,
regulations and policies of the FCC.
10.5. Taxes. Seller has, in respect of the Stations' business, filed all
foreign, federal, state, county and local income, excise, property, sales, use,
franchise and other tax returns and reports which are required to have been
filed by it under applicable law and has paid all taxes which have become due
pursuant to such returns or pursuant to any assessments which have become
payable.
10.6. Personal Property. Schedule 1.1(b) contains a list of all material items
of Tangible Personal Property included in the Station Assets. Seller has title
to the Tangible Personal Property free and clear of Liens other than Permitted
Liens. The Tangible Personal Property is in good condition and working order.
10.7. Real Property. Schedule 1.1(f) contains a description of all Real Property
included in the Station Assets. Seller has fee simple title to the owned Real
Property ("Owned
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Real Property") free and clear of Liens other than Permitted Liens. Schedule
1.1(f) includes a description of each lease of Real Property or similar
agreement included in the Station Assets (the "Real Property Leases"). The Owned
Real Property includes, and the Real Property Leases provide, access to the
Stations' facilities. To Seller's knowledge, the Real Property is not subject to
any suit for condemnation or other taking by any public authority.
10.8. Contracts. Each of the Station Contracts (including without limitation
each of the Real Property Leases) is in effect and is binding upon Seller and,
to Seller's knowledge, the other parties thereto (subject to bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally). Seller has performed its
obligations under each of the Station Contracts in all material respects, and is
not in material default thereunder, and to Seller's knowledge, no other party to
any of the Station Contracts is in default thereunder in any material respect.
10.9
10.10. Environmental. Except as set forth in any environmental report delivered
by Seller to Buyer prior to the date of this Agreement and except as set forth
on Schedule 1.1(f), to Seller's knowledge, no hazardous or toxic substance or
waste regulated under any applicable environmental, health or safety law has
been generated, stored, transported or released on, in, from or to the Real
Property included in the Station Assets. Except as set forth in any
environmental report delivered by Seller to Buyer prior to the date of this
Agreement and except as set forth on Schedule 1.1(f), to Seller's knowledge,
Seller has complied in all material respects with all environmental, health and
safety laws applicable to the Stations.
10.11. Intangible Property. Schedule 1.1(d) contains a description of the
material Intangible Property included in the Station Assets. Except as set forth
on Schedule 1.1(d), Seller has received no notice of any claim that its use of
the Intangible Property infringes upon any third party rights. Except as set
forth on Schedule 1.1(d), Seller owns or has the right to use the Intangible
Property free and clear of Liens other than Permitted Liens.
10.12. Compliance with Law. Seller has complied in all material respects with
all laws, regulations, rules, writs, injunctions, ordinances, franchises,
decrees or orders of any court or of any foreign, federal, state, municipal or
other governmental authority which are applicable to the operation of the
Stations. There is no action, suit or proceeding pending or threatened against
Seller in respect of the Stations that will subject Buyer to liability or which
questions the legality or propriety of the transactions contemplated by this
Agreement. To Seller's knowledge, there are no governmental claims or
investigations pending or threatened against Seller in respect of the Stations
(except those affecting the industry generally).
10.13. No Finder. No broker, finder or other person is entitled to a commission,
brokerage fee or other similar payment in connection with this Agreement or the
transactions contemplated hereby as a result of any agreement or action of
Seller or any party acting on Seller's behalf.
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10.14. Financial Statements. Seller has delivered to Buyer copies of the
unaudited results of operations of the Stations for the twelve months ended
December 31, 1999 and copies of unaudited balance sheets of the Stations as of
four months ended April 30, 2000, prepared in accordance with the books and
records of the Stations.
11 ARTICLE: ACCOUNTS RECEIVABLE
11.1. Accounts Receivable. All accounts receivable arising prior to the Closing
Date in connection with the operation of the Stations (other than non-cash
receivables under Trade Agreements), including but not 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 "Accounts
Receivable") and Buyer shall not acquire any right or interest therein. For a
period of six months from Closing (the "Collection Period"), Buyer shall collect
the Accounts Receivable in the normal and ordinary course of Buyer's business
and shall apply all such amounts collected to the debtor's oldest account
receivable first. Buyer's obligation shall not extend to the institution of
litigation, employment of counsel or a collection agency or any other
extraordinary means of collection. During the Collection Period, neither Seller
or its agents shall make any direct solicitation of any such account debtor for
collection purposes or institute litigation for the collection of amounts due.
Any amounts relating to the Accounts Receivable that are paid directly to Seller
shall be retained by Seller. Within ten calendar days after the end of each
month, Buyer shall make a payment to Seller equal to the amount of all
collections of Accounts Receivable during the preceding month. At the end of the
Collection Period, any remaining Accounts Receivable shall be returned to Seller
for collection.
12 ARTICLE: COVENANTS OF SELLER
12.1. Seller's Covenants. Seller covenants and agrees with respect to the
Stations that, between the date hereof and Closing, except as permitted by this
Agreement or with the prior written consent of Buyer, which shall not be
unreasonably withheld, Seller shall:
(a) operate the Stations in the ordinary course of business consistent with past
practice and in all material respects in accordance with FCC rules and
regulations and with all other applicable laws, regulations, rules and orders;
(b) not, other than in the ordinary course of business in accordance with past
practice, sell, lease or dispose of or agree to sell, lease or dispose of any of
the Station Assets, or create, assume or permit to exist any Liens upon the
Station Assets, except for Permitted Liens;
(c) furnish Buyer with such information, including monthly unaudited financial
statements, relating to the Station Assets, and provide Buyer with such access
to the Stations, as
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Buyer may reasonably request with Seller's prior approval which shall not be
unreasonably withheld, at Buyer's expense and provided such request does not
interfere unreasonably with the business of the Stations;
(d) give or cause the Stations to give Buyer and Buyer's accountants, at Buyer's
expense, and reasonable request and upon reasonable notice, full and reasonable
access during normal business hours to Seller's financial records that Buyer may
reasonably request. The rights of Buyer under this Section shall not be
exercised in such a manner as to interfere unreasonably with the business of the
Stations. Any investigation by Buyer in accordance with the foregoing shall not
diminish or negate, in any way, any of the representations or warranties of
Seller set forth in this Agreement or in connection herewith;
(e) cooperate, and use its reasonable best efforts to cause its independent
auditors to reasonably cooperate, with Buyer in order to enable Buyer to have
independent auditors selected by Buyer, and at Buyer's expense, prepare audited
financial statements for the Stations for the three (3) most recently completed
fiscal year-ends and any quarter and related year to date period during the
current fiscal year. Without limiting the generality of the foregoing, Seller
agrees that it will: (i) consent to the use of and execute documents in support
of such audited financial statements in any registration statement or other
document filed by Buyer under Securities Act of 1933 and the Securities and
Exchange Act of 1934 or any document relating to a private placement of Buyer's
securities;
(f) not enter into new Station Contracts with a term greater than one year and
an aggregate value greater than $25,000 which cannot be canceled with ninety
(90) days prior written notice or that is with an affiliate of Seller (unless
the terms are no less favorable to the Stations than could be obtained on an
arms-length basis from an unaffiliated third party), without providing prior
written notice to Buyer, or enter into Trade Agreements which in the aggregate
exceed related barter assets;
12.2. Real Property. Buyer may at its expense conduct an environmental review of
the owned Real Property and a title review of the owned Real Property prior to
Closing. If it is established prior to Closing that there exists a material
adverse violation of, or condition requiring remediation under, applicable
environmental law at any of the Stations' owned Real Property (an "Environmental
Condition"), then Buyer may elect to designate the affected owned Real Property
as an Excluded Assets (but such exclusion shall not deprive Buyer of any other
Station Assets at such site to which it is entitled upon Closing), and upon
Closing the parties shall cooperate to facilitate Buyer's transition from such
site to a new location at Buyer's expense and without delay of Closing. If it is
established prior to Closing that Seller's title to any owned Real Property
currently used by Seller in the operation of the Stations is subject to a title
defect or deficiency that materially adversely affects the operation of a
Station located thereon as currently operated, them, except for Permitted Liens,
Seller shall remedy such defect in all material respects, but the Closing shall
not be delayed and Seller may remedy any such condition after Closing.
12
13 ARTICLE: JOINT COVENANTS
14 Buyer and Seller hereby covenant and agree that between the date hereof and
Closing:
14.1. Cooperation. Subject to express limitations contained elsewhere herein,
each party (i) shall 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 prompt satisfaction of any condition to Closing set forth
herein, and (ii) shall not take any action that conflicts with its obligations
hereunder or that causes its representations and warranties to become untrue in
any material respect.
14.2. Control of Stations. Buyer shall not, directly or indirectly, control,
supervise or direct the operations of the Stations prior to Closing. Such
operations, including complete control and supervision of all Stations'
programs, employees and policies, shall be the sole responsibility of Seller.
14.3. Consents to Assignment. The parties shall use commercially reasonable
efforts to obtain any third party consents necessary for the assignment of any
Station Contract (which shall not require any payment to any such third party).
To the extent that any Station Contract may not be assigned without the consent
of any third party, and such consent is not obtained prior to Closing, this
Agreement and any assignment executed pursuant hereto shall not constitute an
assignment thereof, but to the extent permitted by law shall constitute an
equitable assignment by Seller and assumption by Buyer of Seller's rights and
obligations under the applicable Station Contract, with Seller making available
to Buyer the benefits thereof and Buyer performing the obligations thereunder on
Seller's behalf ; provided, however, that Seller shall indemnify Buyer from and
against all costs, expenses and damages incurred by Buyer as a result of
Seller's failure to have obtained a consent to assignment with respect to any of
the leases for the main transmitter sites listed on Schedule 1.1(f) from which
the Stations' signals are broadcast. Seller shall be released from all
indemnification obligations with respect to Seller's failure to have obtained a
consent to assignment with respect to any of the leases for the main transmitter
sites from which the Stations' signals are broadcast six (6) months after the
Closing Date, except to the extent that written notice of such indemnification
claim is given by Buyer to Seller within the six month time period.
14.4. Employee Matters.
(a) Prior to Closing, Seller shall deliver to Buyer a list of substantially all
the employees who work for the Stations. Buyer may interview and elect to hire
such listed employees, but not any other employees of Seller. Buyer is obligated
to hire only those employees that are under employment contracts (and assume
Seller's obligations and liabilities
13
under such employment contracts) which are included in the Station Contracts.
With respect to employees hired by Buyer ("Transferred Employees"), to the
extent permitted by law, Seller shall provide Buyer access to its personnel
records and such other information as Buyer may reasonably request prior to
Closing. With respect to Transferred Employees, Seller shall be responsible for
the payment of all compensation payable by it until Closing and thereafter Buyer
shall be responsible for all such obligations payable by Buyer. Buyer shall
cause all Transferred Employees 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) in which similarly situated
employees are generally eligible to participate; provided, however, that all
such employees and their spouses and dependents shall be eligible for coverage
immediately after Closing (and shall not be excluded from coverage on account of
any pre-existing condition) to the extent provided under such plans. 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
Transferred Employees may be eligible after Closing, Buyer shall ensure that
service with Seller shall be deemed to have been service with the Buyer to the
extent provided under applicable plans. In addition, Buyer shall ensure that
each of the Transferred Employees receives credit under any welfare benefit plan
of Buyer to the extent provided under applicable plans for any deductibles or
co-payments paid by such employees and dependents for the current plan year
under a plan maintained by Seller. Notwithstanding any other provision contained
herein, Buyer shall grant credit (but no cash payment) to each of the
Transferred Employee for all unused sick leave accrued as of Closing as an
employee of Seller. Buyer shall assume and discharge Seller's liabilities for
the payment of all unused vacation leave accrued by such employees as of Closing
to extent Buyer receives a credit therefor from Seller.
(b) As of the Closing Date, Buyer shall cause its 401(k) plan to permit
Transferred Employees who participate in the Seller's 401(k) plan to elect to
make direct rollovers by trustee to trustee transfer of their account balances
in Seller's 401(k) plan into the Buyer's 401(k) plan, including, the direct
rollover of any outstanding loan balances such that they will continue to make
payments under the terms of such loans under the Buyer's 401(k) plan; provided,
that, such action is in full compliance with all applicable law and regulations,
including the Code, as of the date of the proposed rollover and Buyer receives
appropriate information with respect to such account balance and loan balances.
14.5. 1031 Exchange. At or prior to Closing, Seller may assign its rights under
this Agreement (in whole or in part) to a qualified intermediary (as defined in
Treasury regulation section 1.1031(k)-1(g)(4)) or similar entity or arrangement
("Qualified Intermediary"). Upon any such assignment, Seller shall promptly give
written notice thereof to Buyer, and Buyer shall cooperate with the reasonable
requests of Seller and any Qualified Intermediary in connection therewith.
Without limiting the generality of the foregoing, if Seller gives notice of such
assignment, Buyer shall (i) promptly provide Seller with written acknowledgment
of such notice and (ii) at Closing, pay the Purchase Price (or any portion
thereof designated by the Qualified Intermediary) to or on behalf of the
Qualified Intermediary (which payment shall, to the extent
14
thereof, satisfy the obligations of Buyer to make such payment hereunder).
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 or default by Buyer under this Agreement.
14.7. Trust. Notwithstanding anything in this Agreement to the contrary, Seller
may at it option assign this Agreement (in whole or part) and assign and
transfer the Station Assets (in whole or in part) to a trustee to hold and
operate pursuant to a trust agreement, provided such trustee assumes Seller's
duties and obligations hereunder with respect to the Station Assets held in such
trust.
15 ARTICLE: CONDITIONS OF CLOSING BY BUYER
16 The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
16.1. Representations, Warranties and Covenants. The representations and
warranties of Seller made in this Agreement shall be true and correct in all
material respects as of the Closing Date except for changes permitted or
contemplated by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Seller at or prior to Closing shall have been
complied with or performed in all material respects. 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 the conditions set forth in this Section
have been satisfied.
16.2. Governmental Consents. The FCC Consent and DOJ Consent, and, if
applicable, HSR Clearance, shall have been obtained, and no court or
governmental order prohibiting Closing shall be in effect.
17 ARTICLE: CONDITIONS OF CLOSING BY SELLER
18 The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
18.1. Representations, Warranties and Covenants. The representations and
warranties of Buyer made in this Agreement shall be true and correct in all
material respects as of the Closing Date except for changes permitted or
contemplated by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Buyer at or prior to Closing shall have been
complied with or performed in all material respects. Seller shall have received
a certificate dated as of the Closing Date from Buyer, executed by an authorized
officer of Buyer, to the effect that the conditions set forth in this Section
have been satisfied.
15
18.2. Governmental Consents. The FCC Consent and DOJ Consent, and, if
applicable, HSR Clearance, shall have been obtained, and no court or
governmental order prohibiting Closing shall be in effect.
18.3. AMFM Closing. The closing under the AMFM Agreement shall have been
consummated.
18.4
19 ARTICLE: EXPENSES
19.1. Expenses. Each party 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, except that (i)
all recordation, transfer and documentary taxes, fees and charges, and any
excise, sales or use taxes, applicable to the transfer of the Station Assets
shall be paid equally by Buyer and Seller, (ii) all FCC filing fees shall be
paid equally by Buyer and Seller, and (iii) all HSR Act filing fees and expenses
shall be paid equally by Buyer and Seller.
20 ARTICLE: DOCUMENTS TO BE DELIVERED AT CLOSING
20.1. Seller's Documents. At Closing, Seller shall deliver or cause to be
delivered to Buyer:
(i) certified copies of resolutions authorizing its execution,
delivery and performance of this Agreement, including the consummation of the
transactions contemplated hereby;
(ii) the certificate described in Section 11.1; and
(iii) such bills of sale, assignments, special warranty deeds,
documents of title and other instruments of conveyance, assignment and transfer
as may be necessary to convey, transfer and assign the Station Assets to Buyer,
free and clear of Liens, except for Permitted Liens.
1.1. Buyer's Documents. At Closing, Buyer shall deliver or cause to be
delivered to Seller:
1.2. (i) the certified copies of resolutions authorizing its execution, delivery
and performance of this Agreement, including the consummation of the
transactions contemplated hereby;
1.3. (ii) the certificate described in Section 12.1; and
16
1.4 (iii) such documents and instruments of assumption as may be necessary to
assume the Assumed Obligations, and the Purchase Price in accordance with
Section 3.1 hereof.
2 ARTICLE: SURVIVAL; INDEMNIFICATION.
2.1. Survival. The covenants, agreements, representations and warranties in
this Agreement shall survive Closing for a period of twelve (12) months from the
Closing Date whereupon they shall expire and be of no further force or effect,
except those under (i) this Article 15 that relate to Damages (defined below)
for which written notice is given by the indemnified party to the indemnifying
party prior to the expiration, which shall survive until resolved and (ii) the
following provisions (the "Expense Provisions"): Sections 2.1 (Assumed
Obligations), 2.2 (Retained Obligations), 3.3 (Adjustments), 3.4 (Allocation),
8.1 (Accounts Receivable), 13.1 (Expenses) and 17.1 (Casualty Loss), and
indemnification obligations with respect to such provisions, which shall survive
until performed.
2.2. Indemnification.
(a) 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 resulting from: (i) any breach or default by Seller
under this Agreement; (ii) the Retained Obligations; or (iii) the business or
operation of the Stations before Closing; provided, however, that after Closing,
except for Expenses Provisions (which shall not be subject to such limitations),
(i) Seller shall have no liability to Buyer hereunder until, and only to the
extent that, Buyer's aggregate Damages exceed $500,000 and (ii) the maximum
liability of Seller hereunder shall be $10,000,000.
(b) 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
resulting from: (i) any breach or default by Buyer under this Agreement; (ii)
the Assumed Obligations; or (iii) the business or operation of the Stations
after Closing; provided however, that after Closing, except for the Expense
Provisions (which shall not be subject to such limitations), (i) Buyer shall
have no liability to Seller hereunder until, and only to the extent that,
Seller's aggregate Damages exceed $500,000 and (ii) the maximum liability of
Buyer hereunder shall be $10,000,000.
2.3. Procedures. The indemnified party shall 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 (a "Claim"), but a 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
17
obligations and liabilities of the parties with respect to any Claim shall be
subject to the following additional terms and conditions:
(a) 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.
(b) 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
shall include sufficient description of background information explaining the
basis for such Claim) of any such Claim from the indemnified party, the
indemnifying party 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).
(c) Anything herein to the contrary notwithstanding: (i) 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; (ii) 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 (iii) 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 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.
(d) All claims not disputed 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 thirty (30) 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. 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 the parties thereto or their attorneys; (iv) a written acknowledgment
of the
18
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. 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.
3 ARTICLE: TERMINATION
3.1. Termination. This Agreement may be terminated at any time prior to Closing
as follows:
(a) by mutual written consent of Buyer and Seller;
(b) by written notice of Buyer to Seller if Seller (i) does not satisfy the
conditions or perform the obligations to be satisfied or performed by it on the
Closing Date; or (ii) otherwise breaches in any material respect any of its
representations or warranties or defaults in any material respect in the
performance of any of its covenants or agreements herein contained and such
breach or default is not cured within the Cure Period (defined below);
(c) by written notice of Seller to Buyer if Buyer (i) does not satisfy the
conditions or perform the obligations to be satisfied or performed by it on the
Closing Date; or (ii) otherwise breaches in any material respect any of its
representations or warranties or defaults in any material respect in the
performance of any of its covenants or agreements herein contained and such
breach or default is not cured within the Cure Period (defined below);
(d) by written notice of Buyer to Seller, or by Seller to Buyer, if the FCC
denies the FCC Application;
(e) by written notice of Seller to Buyer on or after the closing date of the
AMFM Agreement, provided that DOJ Consent, FCC Consent or HSR Clearance have not
been received; or
(f) by written notice of Seller to Buyer if the AMFM Agreement is terminated or
expires.
(g) The term "Cure Period" as used herein means a period commencing the date
Buyer or Seller receives from the other written notice of breach or default
hereunder and continuing until the earlier of (i) thirty (30) days thereafter or
(ii) the Closing Date; provided, however, that if the breach or default cannot
reasonably be cured within such period but can be cured before the Closing Date,
and if diligent efforts to cure promptly commence, then the Cure Period shall
continue as long as such diligent efforts to cure continue, but not beyond the
Closing Date. Except as set forth below, the termination of this Agreement shall
not relieve any party of any liability for breach or default under this
Agreement prior to the date of termination.
19
Notwithstanding anything contained herein to the contrary, Section 13.1 shall
survive any termination of this Agreement.
3.2. 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 or defaults such that the Closing has not occurred
("Breaching Party"), 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 obtain specific performance
of the terms of this Agreement in lieu of, and not 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. 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.
3.3. Liquidated Damages. If Seller terminates this Agreement due to Buyer's
failure to consummate the Closing on the Closing Date or if this Agreement is
otherwise terminated by Seller pursuant to Section 16.1(c), then Buyer shall pay
Seller as liquidated damages an amount equal to 25% of the Purchase Price. 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.
4 ARTICLE: MISCELLANEOUS PROVISIONS
4.1. Casualty Loss. In the event any loss or damage of the Station Assets exists
on the Closing Date, Buyer and Seller shall consummate the Closing and Seller
shall assign to Buyer the proceeds of any insurance payable to Seller on account
of such damage or loss.
4.2. Further Assurances. 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 and
implement 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.
4.3. Assignment. Except as set forth in Sections 10.5 (1031 Exchange) and 10.6
(Trust), neither party may assign this Agreement without the prior written
consent of the other party hereto; provided, however, that either party may
assign this Agreement to one or
20
more direct or indirect subsidiaries so long as (i) the assigning party remains
liable hereunder, and (ii) such assignment will not delay any consent required
to be obtained hereunder, including but not limited to HSR Clearance, DOJ
Consent and FCC Consent, or delay the Closing in any respect. With respect to
any permitted assignment, the parties shall take all such actions as are
reasonably necessary to effectuate such 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.
4.4. 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.
4.5. 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.
4.6. Governing Law. The construction and performance of this Agreement shall be
governed by the laws of the State of New York without giving effect to the
choice of law provisions thereof.
4.7. 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 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
delivered by facsimile transmission, and shall be addressed as follows (or to
such other address as any party may request by written notice):
if to Seller: c/o Clear Channel Broadcasting, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy (which shall not
constitute notice) to: Xxxxxxx, Head & Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
21
if to Buyer: Emmis Communications Corporation
One Emmis Plaza
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not
constitute notice) to:
Emmis Communications Corporation
One Emmis Plaza
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
1.1. 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.
1.2. 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.
1.3. 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.
1.4. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto and supersedes any and all prior agreements,
arrangements and understandings relating to the matters provided for herein.
This Agreement does not supersede any confidentiality agreement relating to the
Stations.
[SIGNATURE PAGE FOLLOWS]
22
SIGNATURE PAGE(S) TO ASSET PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
SELLER: AMFM HOUSTON, INC.
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxxx Xx., Executive Vice President
AMFM OHIO, INC.
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxxx Xx., Executive Vice President
AMFM RADIO LICENSES, LLC
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx., Executive Vice President
23
BUYER: EMMIS COMMUNICATIONS CORPORATION
By:
--------------------------------------------------
Xxxxxxx X. Xxxxxxx, CEO
24
Schedules
1.1(a) - FCC Licenses
1.1(b) - Tangible Personal Property
1.1(c) - Station Contracts
1.1(d) - Intangible Property
1.1(f) - Real Property
1.2(h) - Excluded Assets
