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EXHIBIT 10.13
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ASSET EXCHANGE AGREEMENT
Among
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES,
CHANCELLOR MEDIA LICENSEE COMPANY,
SFX TEXAS LIMITED PARTNERSHIP
and
SFXTX LIMITED PARTNERSHIP
Dated as of May 29, 1998
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TABLE OF CONTENTS
Page
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SCHEDULES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II. EXCHANGE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . 7
2.1. Exchange of Personal Property, Records and Owned Real Property . 7
2.2. Exchange of Real Property Leases. . . . . . . . . . . . . . . . 7
2.3. Exchange of Contracts. . . . . . . . . . . . . . . . . . . . . . 7
2.4. Exchange of Station Licenses. . . . . . . . . . . . . . . . . . 8
2.5. Exchange of Intellectual Property. . . . . . . . . . . . . . . . 8
2.6. Cash Payment. . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.7. Allocation of Values. . . . . . . . . . . . . . . . . . . . . . 8
2.8. Excluded Assets. . . . . . . . . . . . . . . . . . . . . . . . . 9
2.9. Assumption of Liabilities. . . . . . . . . . . . . . . . . . . . 11
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SFX AND
SFX LICENSEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1. Organization and Standing. . . . . . . . . . . . . . . . . . . . 11
3.2. Authorization of Agreement; No Breach. . . . . . . . . . . . . . 12
3.3. Qualification as Assignor. . . . . . . . . . . . . . . . . . . . 12
3.4. Absence of Conflicting Orders. . . . . . . . . . . . . . . . . . 12
3.5. Absence of Litigation. . . . . . . . . . . . . . . . . . . . . . 12
3.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.7. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF CHANCELLOR
AND CHANCELLOR LICENSEE . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1. Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2. Post-Closing Covenants. . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI. CONDITIONS TO THE PARTIES' OBLIGATION TO CLOSE . . . . . . . . . 15
6.1. Long Island/Jacksonville Exchange Agreement. . . . . . . . . . . 15
6.2. Capstar/SFX Merger. . . . . . . . . . . . . . . . . . . . . . . 15
6.3. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.4. Deliveries. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1. Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.2. Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.3. Documents to be Delivered by Chancellor and Chancellor
Licensee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4. Documents to be Delivered by SFX and SFX Licensee. . . . . . . . 17
ARTICLE VIII. TRANSFER TAXES; FEES AND EXPENSES . . . . . . . . . . . . . . . 18
8.1. Transfer Taxes and Similar Charges. . . . . . . . . . . . . . . 18
8.2. Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.1. Indemnification by Chancellor and Chancellor Licensee. . . . . . 19
9.2. Indemnification by SFX and SFX Licensee. . . . . . . . . . . . . 20
9.3. Survival of Covenants, Representations and Warranties. . . . . . 21
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9.4. Indemnification Procedures. . . . . . . . . . . . . . . . . . . 22
ARTICLE X. OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.1. Publicity. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.2. Benefit and Assignment. . . . . . . . . . . . . . . . . . . . . 23
10.3. No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . 23
10.4. Nature of Representations and Warranties: Entire Agreement,
Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . 23
10.5. Choice of Law. . . . . . . . . . . . . . . . . . . . . . . . . 24
10.6. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.7. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.8. Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 25
10.9. Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . 26
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SCHEDULES
1.1 Houston Contracts
1.2 Houston Intellectual Property
1.3 Houston Personal Property
1.4 Houston Real Property Leases
1.5 Houston Station Licenses
1.6 Jacksonville Contracts
1.7 Jacksonville Intellectual Property
1.8 Jacksonville Owned Real Property
1.9 Jacksonville Personal Property
1.10 Jacksonville Real Property Leases
1.11 Jacksonville Station Licenses
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ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as of May 29, 1998, among
Chancellor Media Corporation of Los Angeles, a Delaware corporation
("Chancellor"), Chancellor Media Licensee Company, a Delaware corporation
("Chancellor Licensee"), SFX Texas Limited Partnership, a Delaware limited
partnership ("SFX"), and SFXTX Limited Partnership, a Delaware limited
partnership ("SFX Licensee").
WHEREAS, Chancellor and Capstar Broadcasting Corporation, a
Delaware corporation ("Capstar") are parties to an agreement, dated February
20, 1998 (as such agreement may be amended from time to time, the "Master
Agreement"), under which Chancellor and Capstar agreed to exchange, or to cause
their subsidiaries to exchange, certain radio stations pursuant to the terms
and conditions contained in the Master Agreement;
WHEREAS, as part of the Master Agreement, the parties have agreed
to exchange the Jacksonville Stations (as defined below) plus cash in the
amount of Ninety Million Two Hundred and Fifty Thousand Dollars ($90,250,000),
for the Houston Station (as defined below);
WHEREAS, Chancellor owns all of the assets used in, held for use
in connection with or necessary for the conduct of the business or operations
of radio stations WAPE-FM and WFYV(FM) (the "Jacksonville Stations");
WHEREAS, Chancellor Licensee holds the licenses, permits and
authorizations issued by the Federal Communications Commission (the "FCC") for
the operation of the Jacksonville Stations;
WHEREAS, SFX owns all of the assets used in, held for use in
connection with or necessary for the conduct of the business or operations of
radio station KODA(FM), Houston (the "Houston Station");
WHEREAS, SFX Licensee holds the licenses, permits and
authorizations issued by the FCC for the operation of the Houston Station;
WHEREAS, Chancellor and Chancellor Licensee, on the one hand, and
SFX and SFX Licensee on the other, desire to contemporaneously exchange certain
property and assets used in, held for use in connection with or necessary for
the conduct of the business or operations of the Jacksonville Stations and the
Houston Station (collectively, the "Stations"); and
WHEREAS, Chancellor and Chancellor Licensee, on the one hand, and
SFX and SFX Licensee on the other, intend to transfer the Stations in a
transaction that will qualify to the maximum extent permissible as a multiple
asset "like-kind exchange" under Section 1031 of the Code (as defined below),
and each of Chancellor, Chancellor Licensee, SFX and SFX Licensee are willing
to take such steps as are necessary to enable the transactions contemplated
hereby to so qualify.
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NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties made herein, and of the mutual benefits to be
derived hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms
when used herein shall have the meanings assigned to them below.
1.1 "Accounts Receivable" shall mean the rights to cash
payments for the sale of advertising time by the Stations prior to the Cut-Off
Time.
1.2 "Affiliate" shall mean a Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified.
1.3 "Agreement" shall mean this Asset Exchange Agreement.
1.4 "Business Day" shall mean every day of the week excluding
Saturdays, Sundays and Federal holidays.
1.5 "Closing Date" shall mean the date of this Agreement.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as
amended, together with all regulations and rulings issued thereunder by any
governmental authority.
1.7 "Contracts" shall mean the Jacksonville Contracts and the
Houston Contracts.
1.8 "Cut-Off Time" shall mean 12:01 a.m., local time, on the
Closing Date.
1.9 "FCC Applications" shall mean the Jacksonville FCC
Applications and the Houston FCC Application.
1.10 "FCC Consents" shall mean the action by the FCC granting
each of the FCC Applications.
1.11 "Houston Assets" shall mean the Houston Contracts, the
Houston Intellectual Property, the Houston Personal Property, the Houston Real
Property Leases, the Houston Records and the Houston Station Licenses.
1.12 "Houston Contracts" shall mean all contracts, agreements,
purchase orders and leases of whatever nature, whether written or oral, of SFX,
used in, held for use in connection with or necessary for the conduct of the
business or operations of the Houston Station or the Houston Assets, including,
without limitation, employment contracts and other contracts,
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agreements, purchase orders and leases identified on Schedule 1.1, but
excluding the Houston Real Property Leases.
1.13 "Houston FCC Application" shall mean the application or
applications that SFX and Chancellor have filed with the FCC requesting its
consent to the assignment of the Houston Station Licenses from SFX to
Chancellor.
1.14 "Houston Intellectual Property" shall mean all SFX's
right, title and interest in and to the United States and foreign trademarks,
service marks, trade names, trade dress, copyrights, and similar rights,
including registrations and applications to register or renew the registration
of any of the foregoing, United States and foreign letters patent and patent
applications, and inventions, processes, designs, formulas, trade secrets,
jingles, know-how, confidential business and technical information, computer
software, data and documentation, and all similar intangible property rights,
tangible embodiments of any of the foregoing (in any medium including
electronic media), and licenses or permits to use any of the foregoing, used
in, held for use in connection with or necessary for the conduct of the
business or operations of the Houston Station or the Houston Assets, including,
without limitation, all intellectual property identified on Schedule 1.2.
1.15 "Houston Personal Property" shall mean all equipment,
office furniture and fixtures, office materials and supplies, inventory, spare
parts and other tangible personal property owned or leased by SFX used in, held
for use in connection with or necessary for the conduct of the business or
operations of the Houston Station or the Houston Assets including, without
limitation, all of those items identified on Schedule 1.3.
1.16 "Houston Real Property Leases" shall mean all of SFX's
leases, subleases, licenses and occupancy agreements, including any amendments
thereto, relating to real property used in, held for use in connection with or
necessary for the conduct of the business or operations of the Houston Station
or the Houston Assets, including, without limitation, those items identified on
Schedule 1.4, together with all easements and other appurtenances for the
benefit thereof.
1.17 "Houston Records" shall mean all files, records (including
but not limited to copies of the general ledger and accounts receivable
records), logs, program materials, programs, lists, music libraries, public
inspection files that relate to the Houston Station and all proprietary
information and data, maps, plans, diagrams, blueprints, schematics and
technical drawings, engineering records, and FCC applications and filings
maintained with respect to the Houston Station pursuant to the rules and
regulations of the FCC.
1.18 "Houston Required Consents" shall mean any rights,
privileges and obligations under any Houston Contract identified as "Material"
on the Schedules to this Agreement, to be assigned pursuant to this Agreement,
that are not capable of being assigned without the consent, approval or waiver
of a third person or entity.
1.19 "Houston Station Licenses" shall mean the licenses,
permits and other authorizations issued by the FCC, the Federal Aviation
Administration (the "FAA") and any other
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federal, state or local governmental or regulatory authorities in connection
with the business or operations of the Houston Station or the Houston Assets
including, without limitation, the licenses, permits and other authorizations
identified on Schedule 1.5.
1.20 "HSRA" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the regulations adopted thereunder.
1.21 "Jacksonville Assets" shall mean the Jacksonville
Contracts, the Jacksonville Intellectual Property, the Jacksonville Personal
Property, the Jacksonville Owned Real Property, the Jacksonville Real Property
Leases, the Jacksonville Records and the Jacksonville Station Licenses.
1.22 "Jacksonville Contracts" shall mean all contracts,
agreements, purchase orders and leases of whatever nature, whether written or
oral, of Chancellor, used in, held for use in connection with or necessary for
the conduct of the business or operations of the Jacksonville Stations or the
Jacksonville Assets, including, without limitation, employment contracts and
other contracts, agreements, purchase orders and leases identified on Schedule
1.6, but excluding the Jacksonville Real Property Leases.
1.23 "Jacksonville FCC Applications" shall mean the application
or applications that Chancellor and SFX have filed with the FCC requesting its
consent to the assignment of the Jacksonville Stations Licenses from Chancellor
to SFX.
1.24 "Jacksonville Intellectual Property" shall mean all of
Chancellor's right, title and interest in and to the United States and foreign
trademarks, service marks, trade names, trade dress, copyrights, and similar
rights, including registrations and applications to register or renew the
registration of any of the foregoing, United States and foreign letters patent
and patent applications, and inventions, processes, designs, formulas, trade
secrets, jingles, know-how, confidential business and technical information,
computer software, data and documentation, and all similar intangible property
rights, tangible embodiments of any of the foregoing (in any medium including
electronic media), and licenses or permits to use any of the foregoing, used
in, held for use in connection with or necessary for the conduct of the
business or operations of the Jacksonville Stations or the Jacksonville Assets
including, without limitation, all intellectual property identified on Schedule
1.7.
1.25 "Jacksonville LMA" shall mean the Local Marketing
Agreement, dated July 1, 1996, as amended, between Chancellor Radio
Broadcasting Company ("CRBC") and SFX Broadcasting, Inc. ("SFX Broadcasting"),
providing for the sale of substantially all of the programming time on the
Jacksonville Stations from CRBC to SFX Broadcasting.
1.26 "Jacksonville Owned Real Property" shall mean all real
property and interests in real property owned by Chancellor and used in, held
for use in connection with, necessary for the conduct of or otherwise material
to, the business or operations of the Jacksonville Stations or the Jacksonville
Assets, together with all easements and other appurtenances for the benefit
thereof, all of which is identified on Schedule 1.8.
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1.27 "Jacksonville Personal Property" shall mean all equipment,
office furniture and fixtures, office materials and supplies, inventory, spare
parts and other tangible personal property owned or leased by Chancellor used
in, held for use in connection with or necessary for the conduct of the
business or operations of the Jacksonville Stations or the Jacksonville Assets,
including, without limitation, all of those items identified on Schedule 1.9.
1.28 "Jacksonville Real Property Leases" shall mean all of
Chancellor's leases, subleases, licenses and occupancy agreements, including
any amendments thereto, relating to real property used in, held for use in
connection with or necessary for the conduct of the business or operations of
the Jacksonville Stations or the Jacksonville Assets, including, without
limitation, those items identified on Schedule 1.10, together with all
easements and other appurtenances for the benefit thereof.
1.29 "Jacksonville Records" shall mean all files, records
(including but not limited to copies of the general ledger and accounts
receivable records), logs, program materials, programs, lists, music libraries,
public inspection files that relate solely to the Jacksonville Stations and all
proprietary information and data, maps, plans, diagrams, blueprints, schematics
and technical drawings, engineering records, and FCC applications and filings
maintained solely with respect to the Jacksonville Stations pursuant to the
rules and regulations of the FCC.
1.30 "Jacksonville Required Consents" shall mean any rights,
privileges and obligations under any Jacksonville Contract identified as
"Material" on the Schedules to this Agreement, to be assigned pursuant to this
Agreement, that are not capable of being assigned without the consent, approval
or waiver of a third person or entity.
1.31 "Jacksonville Station Licenses" shall mean the licenses,
permits and other authorizations issued by the FCC, the FAA and any other
federal, state or local governmental or regulatory authorities in connection
with the business or operations of the Jacksonville Stations or the
Jacksonville Assets including without limitation, the licenses, permits and
other authorizations identified on Schedule 1.11.
1.32 "Liens" shall mean all debts, liens, charges, security
interests, mortgages, pledges, judgments, trusts, adverse claims, liabilities,
encumbrances and other impairments of title.
1.33 "Permitted Liens" shall mean (i) statutory Liens for
current Taxes not yet due and payable, or being contested in good faith by
appropriate proceedings, (ii) mechanics', carriers', workers', repairers', and
other similar Liens imposed by law arising or incurred in the ordinary course
of business for obligations which are not overdue for a period of more than 90
days or which are being contested in good faith by appropriate proceedings,
(iii) in the case of leases of vehicles, rolling stock, and other personal
property, encumbrances, which do not, individually or in the aggregate,
materially impair the operation of the business at the facility at which such
leased equipment or other personal property is located, (iv) liens on leases of
real property arising from the provisions of such leases, including, in
relation to leased real property, any agreements and/or conditions imposed on
the issuance of land use permits, zoning, business licenses, use permits, or
other entitlements of various types issued by any governmental entity,
necessary or beneficial to the
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continued use and occupancy of the Houston Assets or the Jacksonville Assets,
as applicable, or the continuation of the operation of any Station, (v) pledges
or deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation,
(vi) unviolated zoning regulations and restrictive covenants and easements of
record which do not detract from the value of the Houston Real Property or the
Jacksonville Real Property, as applicable, and do not materially and adversely
affect, impair or interfere with the use of any property affected thereby, and
(vii) public utility easements of record, in customary form, to serve the
Houston Real Property or the Jacksonville Real Property, as applicable.
1.34 "Person" shall mean an individual, corporation,
partnership, limited liability company, association, trust or other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
1.35 "Proration Items" shall mean all revenues, refunds,
deposits and prepaid expenses of the Stations and any power and utility
charges, business and license fees (including retroactive adjustments thereof),
sales and service charges, commissions, special assessments, prepaid rental
payments, real estate and other property taxes and assessments with respect to
real property, prepaid cash time sales agreements, program license fees,
broadcast rights fees, accrued vacation, unused sick leave and other similar
prepaid and deferred items and any other operating expenses incurred in the
ordinary course of business.
1.36 "Real Property Leases" shall mean the Jacksonville Real
Property Leases and the Houston Real Property Leases.
1.37 "Station Licenses" shall mean the Jacksonville Station
Licenses and the Houston Station Licenses.
1.38 "Tax" shall mean any federal, state, local or foreign
income, alternative, minimum, accumulated earnings, personal holding company,
franchise, unincorporated business, capital stock, profits, windfall profits,
gross receipts, sales, use, value added, transfer, registration, stamp,
premium, excise, customs duties, severance, environmental (including taxes
under Section 59A of the Code), real property, personal property, ad valorem,
occupancy, license, occupation, employment, payroll, social security,
disability, unemployment, workers' compensation, withholding, estimated or
similar tax, duty, fee, assessment or other governmental charge or deficiencies
thereof (including all interest and penalties thereon and additions thereto).
1.39 Additional Defined Terms. As used herein, the following
terms shall have the meanings defined in the introduction, recitals or section
indicated below:
Appraisals Section 2.7(a)
Capstar/SFX Merger Section 6.2
Cash Consideration Section 2.6
Chancellor Indemnitees Section 9.2(a)
Closing Section 7.1
FCC Recitals
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Final Proration Amount Section 7.2(b)
Houston Accounts Receivable Section 5.2(b)
Houston Schedule of Accounts Receivable Section 5.2(b)
Houston Station Recitals
Indemnified Party Section 9.4
Indemnifying Party Section 9.4
Jacksonville Stations Recitals
Long Island/Jacksonville Exchange Agreement Section 6.1(a)
Losses Section 9.1(a)
Master Agreement Recitals
Proration Amount Section 7.2(a)
Section 1031 Schedule Section 2.7(b)
SFX Indemnitees Section 9.1(a)
Stations Recitals
ARTICLE II
EXCHANGE OF ASSETS
2.1 Exchange of Personal Property, Records and Owned Real
Property. Concurrently with the execution of this Agreement, (i) Chancellor
shall assign, transfer, convey and deliver or cause to be assigned,
transferred, conveyed or delivered to SFX the Jacksonville Personal Property,
the Jacksonville Records and the Jacksonville Owned Real Property and (ii) SFX
shall assign, transfer, convey and deliver or cause to be assigned,
transferred, conveyed or delivered to Chancellor the Houston Personal Property,
and the Houston Records.
2.2 Exchange of Real Property Leases. Concurrently with the
execution of this Agreement, (i) Chancellor shall assign or cause to be
assigned to SFX all of its rights, privileges and obligations under the
Jacksonville Real Property Leases and (ii) SFX shall assign or cause to be
assigned to Chancellor all of its rights, privileges and obligations under the
Houston Real Property Leases.
2.3 Exchange of Contracts. (a) Subject to (b) and (c) below,
concurrently with the execution of this Agreement, (i) Chancellor shall assign
or cause to be assigned to SFX all of its rights, privileges and obligations
under the Jacksonville Contracts and (ii) SFX shall assign or cause to be
assigned to Chancellor all of its rights, privileges and obligations under the
Houston Contracts.
(b) With respect to any consents, approvals and waivers
required for the assignment of the rights, privileges and obligations under the
Houston Contracts which have not been received prior to the date hereof, SFX
shall use commercially reasonable efforts to obtain such consents, approvals
and waivers after the Closing Date. During the period between the Closing Date
and the date that SFX obtains such consent, SFX shall act as Chancellor's agent
in connection with such contract and the parties shall cooperate to cause
Chancellor to receive the benefit of the rights and privileges under such
contract in exchange for performance by Chancellor of all of
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SFX's obligations under such contract (including but not limited to the payment
to SFX of all amounts due under the contract on and after the Cut-Off Time for
services provided by SFX).
(c) With respect to any consents, approvals and waivers
required for the assignment of the rights, privileges and obligations under the
Jacksonville Contracts which have not been received prior to the date hereof,
Chancellor shall use commercially reasonable efforts to obtain such consents,
approvals and waivers after the Closing Date. During the period between the
Closing Date and the date that Chancellor obtains such consent, Chancellor
shall act as SFX's agent in connection with such contract and the parties shall
cooperate to cause SFX to receive the benefit of the rights and privileges
under such contract in exchange for performance by SFX of all of Chancellor's
obligations under such contract (including but not limited to the payment to
Chancellor of all amounts due under the contract on and after the Cut-Off Time
for services provided by Chancellor).
2.4 Exchange of Station Licenses. Concurrently with the
execution of this Agreement, (i) Chancellor and Chancellor Licensee shall
assign or cause to be assigned to SFX and SFX Licensee all of their right,
title and interest in and to the Jacksonville Station Licenses, and (ii) SFX
and SFX Licensee shall assign or cause to be assigned to Chancellor and
Chancellor Licensee all of their right, title and interest in and to the
Houston Station Licenses.
2.5 Exchange of Intellectual Property. Concurrently with the
execution of this Agreement, (i) Chancellor shall assign or cause to be
assigned to SFX the Jacksonville Intellectual Property and (ii) SFX shall
assign or cause to be assigned to Chancellor the Houston Intellectual Property.
2.6 Cash Payment. As additional consideration for the
exchange of the Houston Assets for the Jacksonville Assets, Chancellor is
paying an aggregate amount of Ninety Million Two Hundred and Fifty Thousand
Dollars ($90,250,000) to SFX at Closing (the "Cash Consideration") by wire
transfer of immediately available funds to a Qualified Intermediary as defined
in Treas. Reg. Section 1.1031(k)-1(g)(4).
2.7 Allocation of Values. (a) Chancellor, Chancellor
Licensee, SFX and SFX Licensee agree that the fair market value of all the
assets included in the Houston Assets is One Hundred and Forty-Three Million
Two Hundred and Fifty Thousand Dollars ($143,250,000) and that the fair market
value of all of the assets included in the Jacksonville Assets is Fifty-Three
Million Dollars ($53,000,000). The fair market value of the Houston Assets and
the Jacksonville Assets shall be allocated on the basis of appraisals (the
"Appraisals") to be prepared by Broadcast Investment Analysts, whose fees and
expenses shall be borne equally by Chancellor and SFX. The parties shall
direct Broadcast Investment Analysts to deliver the Appraisals promptly after
the execution hereof and to set forth in the Appraisals the fair market value
of each asset included in the Houston Assets and Jacksonville Assets.
(b) Within 30 days of the receipt of the Appraisals,
Chancellor and SFX shall prepare a schedule (the "Section 1031 Schedule") that
sets forth the "exchange groups" and "residual groups" (as each quoted term is
defined by Treas. Reg. 1.1031(j)), together with each
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asset included in the Houston and Jacksonville Assets that belongs to the
relevant exchange group or residual group. Chancellor and SFX shall cooperate
in good faith to resolve any issues relating to the Section 1031 Schedule in
order to agree on a single final Section 1031 Schedule.
(c) Chancellor and Chancellor Licensee, as necessary,
shall prepare IRS Form 8594 and IRS Form 8824 reflecting the fair market value
of the Assets they transferred and received as determined in accordance with
the above provisions and shall forward such forms to SFX and SFX Licensee
within thirty (30) days after receipt of the Appraisals. SFX and SFX Licensee,
as necessary, shall prepare IRS Form 8594 and IRS Form 8824 reflecting the fair
market value of the Assets it transferred and received as determined in
accordance with the above provisions and shall forward such forms to Chancellor
and Chancellor Licensee within thirty (30) days after receipt of the
Appraisals. Each of Chancellor, Chancellor Licensee, SFX and SFX Licensee, as
necessary, shall file with their respective federal income tax returns, for the
tax year in which the Closing occurs, IRS Form 8594 and IRS Form 8824 as
prepared in accordance with the foregoing. Each of Chancellor, Chancellor
Licensee, SFX and SFX Licensee, as necessary, shall deliver to the other
parties hereto a copy of the IRS Form 8594 and IRS Form 8824 as filed with
their respective federal income tax return within thirty days of the filing of
such return. Chancellor, Chancellor Licensee, SFX and SFX Licensee hereby
covenant and agree with each other that they will not take a position on any
income tax return that is in any way inconsistent with the terms of this
Section 2.7.
(d) Notwithstanding any other provision of this
Agreement, the provisions of this Section 2.7 shall survive the Closing without
limitation.
2.8 Excluded Assets. (a) Notwithstanding anything to the
contrary set forth herein, the Jacksonville Assets shall not include the
following:
(i) all books and records related solely to
internal corporate/partnership matters, any other books
and records not related to the business or operations of
the Jacksonville Stations, any books and records that
Chancellor is required by law to retain, all general
ledger and accounts receivable records, and all payables
records and invoices, provided that, at SFX's request,
Chancellor or Chancellor Licensee shall provide SFX, at
SFX's expense, with copies of such records covering the
period that Chancellor Licensee was licensee of the
Jacksonville Stations;
(ii) all books, records, and other intangible
assets related solely to Chancellor's and Chancellor
Licensee's internal corporate matters and not related to
the operation of the Jacksonville Stations;
(iii) all claims, rights, and interest in and to
any refunds for federal, state, or local franchise,
income, or other Taxes or fees of any nature whatsoever
relating to Taxes and fees for which Chancellor or
Chancellor Licensee is the responsible party;
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(iv) Chancellor's cash on hand as of the Cut-Off
Time and all other cash in any bank account of Chancellor;
any and all cash equivalents, certificates of deposit,
bonds, repurchase agreements, letters of credit,
marketable securities, or other similar items;
(v) all insurance policies;
(vi) all employee plans of Chancellor or
Chancellor Licensee related to the Jacksonville Stations,
including all trusts and other funding arrangements and
the assets and liabilities thereof;
(vii) the rights of Chancellor or Chancellor
Licensee under this Agreement or any other agreement
executed in connection herewith; and
(viii) the capital stock of any subsidiary of
Chancellor.
(b) Notwithstanding anything to the contrary set forth
herein, the Houston Assets shall not include the following:
(i) all Accounts Receivable;
(ii) all books and records related solely to
internal corporate/partnership matters, any other books
and records not related to the business or operations of
the Houston Stations, any books and records that SFX is
required by law to retain, all general ledger and accounts
receivable records, and all payables records and invoices,
provided that, at Chancellor's request, SFX or SFX
Licensee shall provide Chancellor, at Chancellor's
expense, with copies of such records covering the period
that SFX Licensee was licensee of the Houston Station;
(iii) all books, records, and other intangible
assets related solely to SFX's and SFX Licensee's internal
corporate matters and not related to the operation of the
Houston Station;
(iv) all claims, rights, and interest in and to
any refunds for federal, state, or local franchise,
income, or other Taxes or fees of any nature whatsoever
relating to Taxes and fees for which SFX or SFX Licensee
is the responsible party;
(v) SFX's cash on hand as of the Cut-Off Time
and all other cash in any bank account of SFX, any and all
cash equivalents,
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certificates of deposit, bonds, repurchase agreements,
letters of credit, marketable securities, or other similar
items;
(vi) all insurance policies;
(vii) all employee plans of SFX or SFX Licensee
related to the Houston Station, including all trusts and
other funding arrangements and the assets and liabilities
thereof;
(viii) the rights of SFX or SFX Licensee under this
Agreement or any other agreement executed in connection
herewith; and
(ix) the capital stock of any subsidiary of SFX.
2.9 Assumption of Liabilities. (a) Chancellor shall not
assume or undertake to pay, satisfy or discharge any liabilities, obligations,
commitments or responsibilities of SFX except for those arising under Houston
Contracts and Houston Real Property Leases assumed by Chancellor under this
Agreement and then, with respect to liabilities, obligations, commitments or
responsibilities under any such Houston Contract or Houston Real Property
Lease, only those liabilities, obligations, commitments and responsibilities
accruing after and relating exclusively to the operation of the Houston Station
after the date on which such Houston Contract or Houston Real Property Lease
was assumed by Chancellor.
(b) SFX shall not assume or undertake to pay, satisfy
or discharge any liabilities, obligations, commitments or responsibilities of
Chancellor except for those arising under Jacksonville Contracts or
Jacksonville Real Property Leases assumed by SFX under this Agreement and then,
with respect to liabilities, obligations, commitments or responsibilities under
any such Jacksonville Contract or Jacksonville Real Property Lease, only those
liabilities, obligations, commitments and responsibilities accruing after and
relating exclusively to the operation of the Jacksonville Stations after the
date on which such Jacksonville Contract or Jacksonville Real Property Lease
was assumed by SFX.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SFX AND SFX LICENSEE
SFX and SFX Licensee represent and warrant to Chancellor and
Chancellor Licensee as follows:
3.1 Organization and Standing. SFX and SFX Licensee are
limited partnerships duly formed, validly existing and in good standing under
the laws of the State of Delaware, are duly qualified to do business in, and
are in good standing in each jurisdiction where such qualification is necessary
except for those jurisdictions where the failure to be so qualified could not,
individually or in the aggregate, have a material adverse effect. SFX and SFX
Licensee have all necessary organizational power and authority to own, lease
and operate the Houston Assets and to carry on
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the business and operations of the Houston Station as now conducted and as
proposed to be conducted by it between the date hereof and the Closing Date.
3.2 Authorization of Agreement; No Breach. SFX and SFX
Licensee have all necessary organizational power and authority to execute,
deliver and perform this Agreement and such other agreements as are necessary
to consummate the transactions contemplated hereby. Subject to the receipt of
the consents and approvals required elsewhere herein, this Agreement
constitutes the legally valid and binding obligation of SFX and SFX Licensee,
enforceable against SFX and SFX Licensee in accordance with its terms, except
as such enforceability may be limited by bankruptcy and laws affecting the
enforcement of creditors' rights generally or equitable principles. Assuming
that said consents and approvals are obtained, neither such execution, delivery
and performance nor compliance by SFX and SFX Licensee with the terms and
provisions hereof will conflict with or result in a breach of any of the terms,
conditions or provisions of the organizational documents of SFX or SFX Licensee
or any material judgment, order injunction, decree, regulation or ruling of any
court or any other governmental authority to which SFX or SFX Licensee is
subject or any material agreement or contract to which SFX or SFX Licensee is a
party or to which SFX or SFX Licensee is subject, or constitute a material
default thereunder.
3.3 Qualification as Assignor. No facts exist which, under
the Communications Act of 1934, as amended, or the existing rules and
regulations of the FCC, would disqualify SFX or SFX Licensee as an assignor of
the FCC Licenses to be assigned to Chancellor Licensee hereunder.
3.4 Absence of Conflicting Orders. SFX and SFX Licensee are
not subject to any judgment, award, order, writ, injunction, arbitration
decision or decree which prohibits or prevents the performance of this
Agreement or the consummation of any transaction contemplated under this
Agreement, and there is no litigation, administrative action, arbitration,
proceeding or investigation pending, or to SFX's or SFX Licensee's knowledge,
threatened, against SFX, SFX Licensee or their Affiliates, or affecting SFX,
SFX Licensee or their Affiliates in any federal, state or local court or before
any administrative agency or arbitrator that would adversely affect SFX's or
SFX Licensee's ability to perform its obligations under this Agreement or would
prohibit the consummation of the transactions contemplated hereunder.
3.5 Absence of Litigation. There is no material action, suit,
investigation, claim, arbitration, litigation or similar proceeding, nor any
order, decree or judgment pending or, to SFX's or SFX Licensee's knowledge,
threatened, against SFX, SFX Licensee, the Houston Assets or the Houston
Station before any governmental authority.
3.6 Taxes. No event has occurred that could impose on
Chancellor any liability for any taxes, penalties or interest due or to become
due from SFX or SFX Licensee from any taxing authority.
3.7 Title. SFX Licensee is the valid and legal holder of the
Houston Station Licenses. SFX has a valid leasehold interest in all Houston
Leased Property. SFX has good and marketable title to the Houston Personal
Property and the Houston Intellectual Property, free and clear of any Liens,
except for Permitted Liens and Liens that will be removed at or prior to
Closing.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
CHANCELLOR AND CHANCELLOR LICENSEE
Chancellor and Chancellor Licensee represent and warrant to SFX
and SFX Licensee as follows:
4.1 Title. Chancellor Licensee is the valid and legal holder
of the Jacksonville Station Licenses. Chancellor has good and marketable fee
simple title to all fee estates included in the Jacksonville Real Property and
good title to all other owned Jacksonville Real Property, in each case free and
clear of all Liens, except for Permitted Liens and Liens that will be removed
at or prior to Closing. Chancellor has a valid leasehold interest in the
Jacksonville Leased Property. Chancellor has good and marketable title to
Jacksonville Personal Property and the Jacksonville Intellectual Property, free
and clear of any Liens, except for Permitted Liens and Liens that will be
removed at or prior to Closing.
ARTICLE V
COVENANTS
SFX, SFX Licensee, Chancellor and Chancellor Licensee covenant
and agree that for the applicable periods set forth below, they shall act in
accordance with the following:
5.1 Employees. (a) As of the Closing Date, SFX is
terminating all of its employees at the Houston Station (other than those
employees that are employed pursuant to written employment contracts, which
employment contracts shall be assigned to Chancellor). SFX shall be liable for
all severance and other similar benefits to which such employees are entitled
as a result of their employment by SFX prior to the Closing Date under all
employee plans, applicable law or otherwise. Chancellor or Chancellor Licensee
may, but shall not be obligated to, offer employment to each of those employees
previously employed by SFX to be terminated as of the Closing Date. Such offer
of employment shall be under any terms and conditions that Chancellor or
Chancellor Licensee deems appropriate.
(b) As of the Closing Date, Chancellor is terminating
all of its employees at the Jacksonville Stations (other than those employees
that are employed pursuant to written employment contracts, which employment
contracts shall be assigned to SFX). Chancellor shall be liable for all
severance and other similar benefits to which such employees are entitled as a
result of their employment by Chancellor prior to the Closing Date under all
employee plans, applicable law or otherwise. SFX or SFX Licensee may, but
shall not be obligated to, offer employment to each of those employees
previously employed by Chancellor to be terminated as of the Closing Date.
Such offer of employment shall be under any terms and conditions that SFX or
SFX Licensee deems appropriate.
5.2 Post-Closing Covenants. (a) For a period of six years
after the Closing Date, each party agrees to make available to the other party
after Closing, upon request, any records, files, documents and correspondence
of the Stations, the Jacksonville Assets or the
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Houston Assets that are reasonably determined by such party to be necessary or
appropriate in connection with the filing of any report with a governmental
agency or the prosecution or defense of any claim, legal action, counterclaim,
suit, arbitration, governmental investigation, or other legal, administrative,
or tax proceeding, to which the requesting party is a party. The requesting
party shall reimburse the other party for any expenses incurred pursuant to
this Section 5.2, including reimbursement for the time of any of such party's
employees, including any employee of the Station that is the subject of such
request. Each party shall exercise its rights under this Section 5.2 so as not
to unreasonably interfere with or disrupt the operations of the other party.
For a period of six years after the Closing Date, at least 30 days prior to
discarding or destroying any books or records relating to the Jacksonville
Assets or the Houston Assets that are being exchanged hereunder, each party
shall give the other party notice of its intended action and an opportunity for
such other party to retain any of the books or records proposed to be discarded
or destroyed by such party.
(b) Within ten (10) days following the Closing, SFX
shall deliver to Chancellor a schedule of accounts receivable of the Houston
Station as of the Cut-Off Time (the "Houston Schedule of Accounts Receivable").
Chancellor agrees to collect for SFX all accounts receivable for broadcasts on
the Houston Station which occur prior to the Cut-Off Time (the "Houston
Accounts Receivable") as shown on the Houston Schedule of Accounts Receivable
for a period of ninety (90) days following the Closing. SFX will, at the
Closing, provide Chancellor a power of attorney or other required authorization
for the limited purpose of allowing Chancellor to endorse and deposit checks
and other instruments received in payment of such Houston Accounts Receivable.
All payments received by Chancellor from any customer whose name appears in the
Houston Schedule of Accounts Receivable and who is also a customer of
Chancellor shall be credited as payment of the account or invoice designated by
such customer. In the absence of any such designation by the customer,
payments shall be first credited to the oldest invoice which is not disputed by
said customer. Chancellor shall keep accurate records of the payment received
by it on such Houston Accounts Receivable and SFX shall have access at
reasonable times to Chancellor's records to verify such status of the Houston
Accounts Receivable. Chancellor shall promptly deposit amounts collected with
respect to the Houston Accounts Receivables into an account designated by SFX.
Within thirty (30) days after the last business day of each calendar month,
Chancellor shall remit to SFX a written accounting of amounts previously
collected by Chancellor on such Houston Accounts Receivable and an accounts
receivable aging report for those Houston Accounts Receivable still
outstanding. Any Houston Accounts Receivable that have not been collected
within such ninety (90) day period shall be returned to SFX, together with all
records in connection therewith including, but not limited to a final
accounting of the Houston Accounts Receivable still outstanding. Chancellor
shall not have the right to compromise, settle or adjust the amounts of any
such Houston Accounts Receivable without SFX's prior written consent. Except
to remit collected Houston Accounts Receivable in accordance herewith,
Chancellor shall have no liability or obligation to SFX with respect to the
collection of SFX's accounts and shall not be obligated to take any action to
collect such accounts.
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ARTICLE VI
CONDITIONS TO THE PARTIES' OBLIGATION TO CLOSE
Concurrently with, or prior to the execution and delivery of this
Agreement, the following actions shall have occurred:
6.1 Long Island/Jacksonville Exchange Agreement. The Asset
Exchange Agreement between SFX Broadcasting and Chancellor dated July 1, 1996,
as amended, providing for the exchange of SFX Broadcasting's Long Island radio
stations for the Jacksonville Stations (the "Long Island/Jacksonville Exchange
Agreement"), shall have been terminated without legal challenge by any party.
6.2 Capstar/SFX Merger. The merger between SFX Broadcasting
and an affiliate of Capstar (the "Capstar/SFX Merger") shall have closed,
either prior to, or contemporaneous with, the closing of this Agreement.
6.3 Litigation. No action, suit, proceeding, litigation or
investigation shall be pending or threatened by any governmental authority
which questions the validity or legality of this Agreement or any action taken
or to be taken in connection herewith or the consummation of the transactions
contemplated hereby. No injunction or other order issued by a court of
competent jurisdiction restraining or prohibiting the consummation of the
transactions contemplated by this Agreement shall be in effect.
6.4 Deliveries. Chancellor, Chancellor Licensee, SFX and SFX
Licensee shall have made all the deliveries set forth in Section 7.3 and
Section 7.4, respectively.
ARTICLE VII
CLOSING
7.1 Closing. Subject to the terms and conditions of this
Agreement, the closing of this transaction (the "Closing") shall take place on
the date hereof. The Closing shall be held at 10:00 a.m. in the offices of
Weil, Gotshal, & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place or time as the parties may agree.
7.2 Adjustments. (a) Within thirty (30) days after the
Closing Date, Chancellor and SFX shall make a good faith estimate of the
adjustment to the Cash Consideration customary in radio broadcast station
transactions for Proration Items (the "Proration Amount") to reflect that all
Proration Items of the Stations shall be apportioned between Chancellor and SFX
in accordance with the principles that (i) Chancellor, in the case of the
Jacksonville Stations, and SFX, in the case of the Houston Station shall
receive the benefit of all revenues, refunds, deposits and prepaid expenses,
and shall be responsible for all expenses, costs and liabilities allocable to
the conduct of the businesses or
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operations of such Stations, for the period prior to the Cut-Off Time, and (ii)
Chancellor, in the case of the Houston Station, and SFX, in the case of the
Jacksonville Stations, shall receive the benefit of all revenues, refunds,
deposits and prepaid expenses, and shall be responsible for all expenses, costs
and liabilities allocable to the conduct of the businesses or operations of
such Stations, from and after the Closing Date. In determining such
adjustments, adjustments shall be made for contracts for the sale of
advertising time for consideration other than cash ("Trade Agreements") only to
the extent of any Net Negative Trade Balance (as defined below) and only to the
extent that the Net Negative Trade Balance exceeds $50,000 on the Houston
Station, in the case of SFX, or $50,000 on the Jacksonville Stations, in the
case of Chancellor. "Net Negative Trade Balance" means the extent, if any, to
which the value (at current rates for time on the applicable Station as of the
Cut-Off Time) of unfulfilled obligations of the applicable Station under Trade
Agreements exceed the stated value of any consideration yet to be received by
such Station pursuant to such Trade Agreements. Determinations pursuant to
this Section 7.2 shall be made in accordance with generally accepted accounting
principles consistently applied for the period prior to the Closing Date.
(b) Within ninety (90) days after the Closing Date,
Chancellor and SFX shall deliver to each other in writing and in reasonable
detail a good faith final determination of the Proration Amount determined as
of the Closing Date under Section 7.2(a) (the "Final Proration Amount"). Each
of Chancellor and SFX shall provide the other with reasonable access to the
properties, books and records relating to the Stations for the purpose of
determining the Final Proration Amount. If Chancellor or SFX disagree with the
amounts of the Final Proration Amount, they shall so notify each other in
writing within thirty (30) days after the date of receipt of the Final
Proration Amount, specifying in detail any point of disagreement; provided
however, that if either Chancellor or SFX fails to notify the other party of
such disagreement within such thirty (30) day period, the determination of the
Final Proration Amounts shall be final, conclusive and binding on each of
Chancellor and SFX. After the receipt of any notice of disagreement, each
party shall negotiate in good faith to resolve any disagreements regarding the
Final Proration Amount. If any such disagreement cannot be resolved by the
parties within thirty (30) days after notice has been received of the existence
of such disagreement, the parties shall jointly select a nationally recognized
independent public accounting firm (which has not performed any services for
either Chancellor or SFX or any of their respective subsidiaries at any time
during the two (2) year period prior to the date such firm is selected (the
"Accounting Firm")), to review the determination of the Final Proration Amount
and to resolve as soon as possible all points of disagreement raised by either
party. All determinations made by the Accounting Firm with respect to the
Final Proration Amount shall be final, conclusive and binding on the parties.
The fees and expenses of the Accounting Firm incurred in connection with any
such determination shall be shared one-half by Chancellor and one-half by SFX.
Upon determination of the Final Proration Amount, the appropriate
party shall pay such amounts in cash, within two (2) business days following
the final determination of the Final Proration Amount. Any amounts paid
pursuant to this Section 7.2(b) shall be by wire transfer of immediately
available funds for credit to the recipient at a bank account identified by
such recipient in writing.
Chancellor and SFX agree that prior to the date of the final
determination of the Final Proration Amount pursuant to this Section 7.2(b) (by
the Accounting Firm or otherwise),
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neither party will destroy any records pertaining to, or necessary for, the
final determination of the Final Proration Amount.
7.3 Documents to be Delivered by Chancellor and Chancellor
Licensee. Concurrently with the execution and delivery of this Agreement,
Chancellor and Chancellor Licensee have delivered to SFX and SFX Licensee the
following:
(a) instruments of conveyance and transfer, in form and
substance reasonably satisfactory to counsel to SFX, effecting the assignment,
transfer, conveyance and delivery of the Jacksonville Assets to SFX and SFX
Licensee, including, but not limited to, the following:
(i) assignments of the Jacksonville Station
Licenses,
(ii) bills of sale for the Jacksonville Personal
Property;
(iii) assignments of Jacksonville Real Property
Leases and Jacksonville Contracts (including copies of all
Jacksonville Required Consents); and
(iv) assignment of the Jacksonville Intellectual
Property.
(b) certified resolutions of the board of directors and
shareholders (if required by law) of Chancellor and Chancellor Licensee
authorizing the execution, delivery and performance of this Agreement;
(c) a special warranty deed, in a form recordable in
the State of Florida, for each parcel of the Jacksonville Owned Real Property,
which deed shall convey insurable, fee simple title for that parcel free and
clear of all Liens, subject to standard title exceptions and survey exceptions,
none of which will impair or interfere with the continued use of such parcel as
such is currently used; and
(d) such other documents as may reasonably be requested
by counsel to SFX and SFX Licensee.
7.4 Documents to be Delivered by SFX and SFX Licensee.
Concurrently with the execution and delivery of this Agreement, SFX and SFX
Licensee have delivered to Chancellor and Chancellor Licensee the following:
(a) instruments of conveyance and transfer, in form and
substance reasonably satisfactory to counsel to Chancellor, effecting the
assignment, transfer, conveyance and delivery of the Houston Assets to
Chancellor and Chancellor Licensee including, but not limited to, the
following:
(i) assignments of the Houston Station Licenses;
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(ii) bills of sale for the Houston Personal
Property;
(iii) assignments of Houston Real Property Leases
and Houston Contracts (including copies of all Houston
Required Consents); and
(iv) assignment of the Houston Intellectual
Property.
(b) certified resolutions of the board of directors and
shareholders (if required by law) of SFX and SFX Licensee authorizing the
execution, delivery and performance of this Agreement;
(c) an affidavit to the effect that SFX is not a
"foreign person" within the meaning of Section 1445 of the Code;
(d) such other documents as may reasonably be requested
by counsel to Chancellor and Chancellor Licensee.
ARTICLE VIII
TRANSFER TAXES; FEES AND EXPENSES
8.1 Transfer Taxes and Similar Charges. All costs of
transferring the Jacksonville Assets and the Houston Assets in accordance with
this Agreement shall be allocated among the parties as follows:
(a) Chancellor shall pay any and all Taxes that may be
imposed by any taxing authority in the nature of sales or use Taxes as a result
of the transfer of the Jacksonville Assets from Chancellor to SFX. SFX shall
pay any and all Taxes that may be imposed by any taxing authority in the nature
of sales or use Taxes as a result of the transfer of the Houston Assets from
SFX to Chancellor; and
(b) all other costs and expenses of transferring the
Jacksonville Assets and the Houston Assets shall be divided equally between
Chancellor and SFX.
(c) As between Chancellor and SFX, the party that has
the primary responsibility under applicable law for filing any return in
respect of Taxes described in this Section 8.1 shall prepare such return,
subject to the other party's approval, which approval shall not be unreasonably
withheld, and timely file such return.
8.2 Expenses. Except as set forth in Section 8.1, 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.
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ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Chancellor and Chancellor Licensee.
(a) Chancellor and Chancellor Licensee agree to indemnify and hold harmless
SFX, SFX Licensee and their Affiliates and the officers, directors, partners,
employees, agents, advisers and representatives of SFX, SFX Licensee and their
Affiliates ("SFX Indemnitees") from and against, and pay or reimburse each SFX
Indemnitee for, any and all claims, liabilities, obligations, losses, fines,
costs, royalties, proceedings, deficiencies or damages (whether absolute,
accrued, conditional or otherwise and whether or not resulting from third party
claims), including out-of-pocket expenses and reasonable attorneys' and
accountants' fees incurred in connection with the investigation or defense
thereof or in asserting any of their respective rights hereunder (collectively,
"Losses"), resulting from or arising out of:
(i) any inaccuracy of any representation or
warranty made by Chancellor or Chancellor Licensee herein
or in any certificate, document or instrument delivered to
SFX or SFX Licensee pursuant to Section 7.3;
(ii) any failure of Chancellor or Chancellor
Licensee to perform any covenant or agreement hereunder;
(iii) any claims of third parties with respect to
the business and operations of the Jacksonville Stations
or the ownership of the Jacksonville Assets prior to the
commencement of the Jacksonville LMA not expressly assumed
by SFX or SFX Licensee under Section 2.9 hereof or under
the Jacksonville LMA;
(iv) any liabilities, obligations, commitments or
responsibilities of Chancellor or Chancellor Licensee not
expressly assumed by SFX or SFX Licensee under Section
2.9;
(v) any failure of Chancellor or Chancellor
Licensee to comply with applicable bulk sales laws (in
consideration of which indemnification obligation SFX and
SFX Licensee hereby waive compliance by Chancellor or
Chancellor Licensee with any applicable bulk sales laws);
(vi) any liabilities, obligations, commitments or
responsibilities of SFX or SFX Licensee expressly assumed
by Chancellor or Chancellor Licensee pursuant to Section
2.9; and
(vii) the ownership of the Houston Assets or the
operation of the Houston Station subsequent to the
Closing, except to the extent such Loss results from any
inaccuracy of any representation
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or warranty made by SFX or SFX Licensee herein or in any
certificate, document or instrument delivered to
Chancellor or Chancellor Licensee pursuant to Section 7.4
or any failure of SFX or SFX Licensee to perform any
covenant or agreement hereunder.
(b) Limitations on Indemnification.
(i) Notwithstanding anything in Section 9.1(a)
of this Agreement to the contrary, neither Chancellor nor
Chancellor Licensee shall be required to make any
indemnification payments until the aggregate amount of
Losses resulting from or arising out of the matters
referred to in Section 9.1(a) exceeds One Hundred Thousand
Dollars ($100,000) in the aggregate; provided that if the
aggregate amount of such Losses exceeds such amount,
Chancellor and Chancellor Licensee shall be required to
indemnify SFX Indemnitees for all Losses indemnifiable
under Section 9.1(a) without regard to such One Hundred
Thousand Dollar ($100,000) limitation.
(ii) Chancellor's and Chancellor Licensee's
obligations to make any indemnification payments of any
kind under Section 9.l(a) shall be limited to Two Million
Six Hundred Fifty Thousand Dollars ($2,650,000) in the
aggregate.
9.2 Indemnification by SFX and SFX Licensee. (a) General.
SFX and SFX Licensee agree to indemnify and hold harmless Chancellor,
Chancellor Licensee and their Affiliates and the officers, directors, partners,
employees, agents, advisers and representatives of Chancellor, Chancellor
Licensee and their Affiliates ("Chancellor Indemnitees") from and against, and
pay or reimburse each Chancellor Indemnitee for, any and all Losses resulting
from or arising out of:
(i) any inaccuracy in any representation or
warranty made by SFX or SFX Licensee herein or in any
certificate, document or instrument delivered to
Chancellor or Chancellor Licensee pursuant to Section 7.4;
(ii) any failure of SFX or SFX Licensee to
perform any covenant or agreement hereunder;
(iii) any claims of third parties with respect to
the business and operations of the Houston Station or the
ownership of the Houston Assets prior to the Closing not
expressly assumed by Chancellor or Chancellor Licensee
under Section 2.9;
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(iv) any liabilities, obligations, commitments or
responsibilities of SFX or SFX Licensee not expressly
assumed by Chancellor or Chancellor Licensee under Section
2.9;
(v) any failure of SFX or SFX Licensee to comply
with applicable bulk sales laws (in consideration of which
indemnification obligation Chancellor and Chancellor
Licensee hereby waive compliance by SFX or SFX Licensee
with any applicable bulk sales laws);
(vi) any liabilities, obligations, commitments or
responsibilities of Chancellor or Chancellor Licensee
expressly assumed by SFX or SFX Licensee pursuant to
Section 2.9; and
(vii) the ownership of the Jacksonville Assets or
the operation of the Jacksonville Stations subsequent to
the Closing, except to the extent such Loss results from
any inaccuracy of any representation or warranty made by
Chancellor or Chancellor Licensee herein or in any
certificate, document or instrument delivered to SFX or
SFX Licensee pursuant to Section 7.3 or any failure of
Chancellor or Chancellor Licensee to perform any covenant
or agreement hereunder.
(b) Limitations on Indemnification.
(i) Notwithstanding anything in Section 9.2(a)
of this Agreement to the contrary, neither SFX nor SFX
Licensee shall not be required to make any indemnification
payments until the aggregate amount of Losses resulting
from or arising out of the matters referred to in Section
9.2(a) exceeds One Hundred Thousand Dollars ($100,000);
provided that if the aggregate amount of such Losses
exceeds such amount, SFX and SFX Licensee shall be
required to indemnify Chancellor Indemnitees for all
Losses indemnifiable under Section 9.2(a) without regard
to such One Hundred Thousand Dollar ($100,000) limitation.
(ii) SFX's and SFX Licensee's obligation to make
any indemnification payments of any kind under Section
9.2(a) shall be limited to Seven Million One Hundred Sixty
Two Thousand Five Hundred Dollars ($7,162,500) in the
aggregate.
9.3 Survival of Covenants, Representations and Warranties.
The provisions hereof, which by their terms are to be performed and observed
after the Closing Date, and the several representations, warranties,
indemnities and agreements of Chancellor, Chancellor Licensee, SFX and SFX
Licensee herein contained shall survive the Closing Date hereunder for
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eighteen months following the Closing Date, provided, that notwithstanding the
foregoing, the representations and warranties set forth in (i) Section 3.7 and
4.1, to the extent relating to title to the applicable assets, shall survive
the Closing Date forever and (ii) Section 3.6 shall survive the Closing Date
for the applicable statutes of limitation period plus sixty (60) days. No
claim for indemnification may be made pursuant to this Article IX after the
applicable survival periods set forth in this Section 9.3 (except that all
claims which are properly asserted prior to the expiration of the applicable
survival periods set forth in this Section 9.3 shall survive with respect to
such claims until the final resolution thereof).
9.4 Indemnification Procedures. In the case of any claim
asserted by a third party against a party entitled to indemnification under
this Agreement (the "Indemnified Party"), notice shall be given by the
Indemnified Party to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual
knowledge of any claim as to which indemnity may be sought, and the Indemnified
Party shall permit the Indemnifying Party (at the expense of such Indemnifying
Party) to assume the defense of any claim or any litigation resulting
therefrom, provided that (i) the counsel for the Indemnifying Party who shall
conduct the defense of such claim or litigation shall be reasonably
satisfactory to the Indemnified Party, (ii) the Indemnified Party may
participate in such defense at such Indemnified Party's expense, and (iii) the
omission by any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its indemnification obligation under this
Agreement except to the extent that such omission results in a failure of
actual notice to the Indemnifying Party and such Indemnifying Party is
materially damaged as a result of such failure to give notice. Except with the
prior written consent of the Indemnified Party, no Indemnifying Party, in the
defense of any such claim or litigation, shall consent to entry of any judgment
or order, interim or otherwise, or enter into any settlement that provides for
injunctive or other nonmonetary relief affecting the Indemnified Party or that
does not include as an unconditional term thereof the giving by each claimant
or plaintiff to such Indemnified Party of a release from all liability with
respect to such claim or litigation. In the event that the Indemnified Party
shall in good faith determine that the conduct of the defense of any claim
subject to indemnification hereunder or any proposed settlement of any such
claim by the Indemnifying Party might be expected to affect adversely the
Indemnified Party's tax liability or the ability of the Indemnified Party to
conduct the business of the Station or Stations acquired by such Indemnified
Party hereunder or that the Indemnified Party may have available to it one or
more defenses or counterclaims that are inconsistent with one or more of those
that may be available to the Indemnifying Party in respect of such claim or any
litigation relating thereto, the Indemnified Party shall have the right at all
times to take over and assume control over the defense, settlement,
negotiations or litigation relating to any such claim at the sole cost of the
Indemnifying Party, provided that if the Indemnified Party does so take over
and assume control, the Indemnified Party shall not settle such claim or
litigation without the written consent of the Indemnifying Party, such consent
not to be unreasonably withheld. In the event that the Indemnifying Party does
not accept the defense of any matter as above provided, the Indemnified Party
shall have the full right to defend against any such claim or demand and shall
be entitled to settle or agree to pay in full such claim or demand.
Notwithstanding the foregoing, the Indemnifying Party shall still provide
indemnification to the Indemnified Party. In any event, the Indemnifying Party
and the Indemnified Party shall
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cooperate in the defense of any claim or litigation subject to this Section 9.3
and the records of each shall be available to the other with respect to such
defense.
ARTICLE X
OTHER PROVISIONS
10.1 Publicity. Except as required by applicable law or with
the other parties' express written consent, no party to this Agreement nor any
Affiliate of any party shall issue any press release or make any public
statement (oral or written) regarding the transactions contemplated by this
Agreement.
10.2 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. None of SFX, SFX Licensee, Chancellor or Chancellor
Licensee may assign this Agreement without the prior written consent of SFX, in
the case of any such assignment by Chancellor and Chancellor Licensee, or
Chancellor, in the case of any such assignment by SFX and SFX Licensee, except
that:
(a) SFX and SFX Licensee may assign their rights and
obligations under this Agreement to one or more Affiliates of SFX or SFX
Licensee, provided that any such assignment shall not relieve SFX or SFX
Licensee from any of its obligations under this Agreement and provided that any
such assignment does not delay the Closing Date. Furthermore, SFX may assign
its rights to receive the Cash Consideration under this Agreement to a
"qualified intermediary" as defined in Treas. Reg. Section 1.1031(k)-1(g)(4),
subject to all of Chancellor's and Chancellor Licensee's rights and obligations
hereunder, and shall promptly provide written notice of such assignment to all
parties hereto. Chancellor and Chancellor Licensee shall cooperate with all
reasonable requests of SFX and the "qualified intermediary" in arranging and
effecting the deferred like-kind exchange as one which qualifies under Section
1031 of the Code. Without limiting the generality of the foregoing, Chancellor
and Chancellor Licensee shall acknowledge in writing the notification by SFX of
the assignment to the "qualified intermediary" of its rights to receive the
Cash Consideration and other rights hereunder and Chancellor and Chancellor
Licensee hereby agree to pay the Cash Consideration to the "qualified
intermediary" rather than to SFX.
(b) Chancellor and Chancellor Licensee may assign their
rights and obligations under this Agreement to one or more Affiliates of
Chancellor or Chancellor Licensee, provided that any such assignment shall not
relieve Chancellor or Chancellor Licensee from any of their obligations under
this Agreement and provided that any such assignment does not delay the Closing
Date.
10.3 No Third-Party Beneficiaries. Nothing in this Agreement
shall confer any rights upon any person or entity other than the parties hereto
and their respective permitted successors and assigns.
10.4 Nature of Representations and Warranties: Entire
Agreement, Amendments, etc. (a) It is the explicit intent and understanding
of each of the parties hereto that neither party,
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nor any of its Affiliates, representatives or agents, is making any
representation or warranty whatsoever, oral or written, express or implied,
other than those set forth in Articles III and IV.
(b) The Master Agreement (and the agreements
contemplated thereby), the Jacksonville LMA, this Agreement and the exhibits
and schedules hereto constitute 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 or therein.
(c) 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 amendment, waiver or consent is sought.
10.5 Choice of Law. The construction and performance of this
Agreement shall be governed by the laws of the State of Texas without regard to
its principles of conflict of laws.
10.6 Notices. All notices, requests, demands, letters, waivers
and other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (i)
delivered personally, (ii) mailed, certified or registered mail with postage
prepaid, (iii) sent by next-day or overnight mail or delivery or (iv) sent by
fax, as follows:
To Chancellor and Chancellor Licensee:
c/o Chancellor Media Corporation
000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President and Chief
Executive Officer
Fax: (000) 000-0000
Copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
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To SFX and SFX Licensee:
c/o Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxx Xxxxx, President and Chief Executive
Officer
Fax: (000) 000-0000
Copies to:
c/o Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx, General Counsel
Fax: (000) 000-0000
and
Xxxxxx & Xxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other person or address as any party shall specify by notice in
writing to the party entitled to notice. All such notices, requests, demands,
letters, waivers and other communications shall be deemed to have been received
(v) if by personal delivery, on the day such delivery, (vi) if by certified or
registered mail, on the third Business Day after the mailing thereof, (vii) if
by next-day or overnight mail or delivery, on the first Business day after the
mailing thereof or (viii) if by fax, on the day on which such fax was sent,
provided that the sender receive confirmation of such delivery.
10.7 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.
10.8 Further Assurances. SFX and SFX Licensee shall at any
time and from time to time after the Closing execute and deliver to Chancellor
and Chancellor Licensee such further assignments, conveyances and other written
assurances as Chancellor and Chancellor Licensee may reasonably request in
order to vest and confirm in Chancellor and Chancellor Licensee (or their
permitted assignees) the title and rights to and in all of the Houston Assets
to be and intended to be assigned, transferred, conveyed and delivered
hereunder. Chancellor and Chancellor Licensee shall
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at any time and from time to time after the Closing execute and deliver to SFX
and SFX Licensee such further assignments, conveyances and other written
assurances as SFX and SFX Licensee may reasonably request in order to vest and
confirm in SFX and SFX Licensee (or their permitted assignees) the title and
rights to and in all of the Jacksonville Assets to be and intended to be
assigned, transferred, conveyed and delivered hereunder.
10.9 Arbitration. Chancellor, Chancellor Licensee, SFX and SFX
Licensee agree that any dispute arising out of or relating to this Agreement or
the breach, termination, validity hereof or thereof shall be finally settled by
arbitration conducted expeditiously in accordance with the Center for Public
Resources Rules for Nonadministered Arbitration of Business Disputes. The
Center for Public Resources shall appoint a neutral advisor from its National
CPR Panel. The arbitration advisor shall be governed by the United States
Arbitration Act, 9 U.S.C. Sections 1-16, and judgment upon the award rendered
by the arbitrators may be entered by any court having jurisdiction thereof.
The place of arbitration shall be Dallas, Texas. Notwithstanding anything to
the contrary contained herein, the provisions of this Section 10.9 shall not
apply with regard to any equitable remedies to which any party may be entitled
under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first written above.
CHANCELLOR MEDIA CORPORATION
OF LOS ANGELES
By:
----------------------------
Name:
Title:
CHANCELLOR MEDIA LICENSEE COMPANY
By:
----------------------------
Name:
Title:
SFX TEXAS LIMITED PARTNERSHIP
By: SFX Operating GP, Inc.
By:
----------------------------
Name:
Title:
SFXTX LIMITED PARTNERSHIP
By: SFX GP, Inc.
By:
----------------------------
Name:
Title:
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