ASSET PURCHASE AGREEMENT
(KALC-FM, DENVER, COLORADO)
This ASSET PURCHASE AGREEMENT (the "Agreement") is dated as of
September __, 2000 by and between SALEM COMMUNICATIONS ACQUISITION CORPORATION,
a Delaware corporation ("Seller") and EMMIS COMMUNICATIONS CORPORATION, an
Indiana corporation ("Buyer").
RECITALS
1. Seller owns and operates radio station KALC-FM, licensed to
Denver, Colorado (the "Station"), and holds the licenses and authorizations
issued by the FCC for the operation of the Station.
2. Buyer desires to acquire certain assets of the Station, and
Seller is willing to convey such assets to Buyer.
3. The acquisition of the Station is subject to prior approval of
the FCC.
NOW THEREFORE, in consideration of the mutual covenants contained
herein, Seller and Buyer hereby agree as follows:
ARTICLE 1
TERMINOLOGY
1.1 ACT. The Communications Act of 1934, as amended.
1.2 ADJUSTMENT AMOUNT. As provided in SECTION 2.7, the
amount by which Buyer's account is to be credited or charged, as reflected on
the Adjustment List.
1.3 ADJUSTMENT LIST. As provided in SECTION 2.7, an itemized
list of all sums to be credited or charged against the account of Buyer, with a
brief explanation in reasonable detail of the credits or charges.
1.4 ASSUMED OBLIGATIONS. Such term shall have the meaning defined
in SECTION 2.3.
1.5 BUSINESS DAY. Any calendar day, excluding Saturdays and
Sundays, on which federally chartered banks in the city of Denver, Colorado are
regularly open for business.
1.6 BUYER'S THRESHOLD LIMITATION. As provided in SUBSECTION 9.3(b),
the threshold dollar amount for the aggregate of claims, liabilities, damages,
losses, costs and expenses that must be incurred by Buyer before Seller shall be
obligated to indemnify Buyer. The Buyer's Threshold Limitation shall be Five
Hundred Thousand Dollars ($500,000.00).
1.7 CLOSING. The closing with respect to the transactions
contemplated by this Agreement.
1.8 CLOSING DATE. The date determined as the Closing Date as
provided in SECTION 8.1.
1.9 COMMITMENT FEE. Such term shall have the meaning defined in
SECTION 2.4 hereof.
1.10 DOCUMENTS. This Agreement and all Exhibits and Schedules hereto,
the LMA, and each other agreement, certificate, or instrument delivered pursuant
to or in connection with this Agreement, including amendments thereto that are
expressly permitted under the terms of this Agreement.
1.11 INTENTIONALLY OMITTED.
1.12 INTENTIONALLY OMITTED.
1.13 EXCLUDED ASSETS. Such term shall have the meaning defined in
SECTION 2.2.
1.14 FCC. Federal Communications Commission.
1.15 FCC LICENSES. The licenses, permits and authorizations of the
FCC for the operation of the Station listed on SCHEDULE 3.7.
1.16 FCC ORDER. An action, order, or decision of the FCC granting
its consent to the assignment of the FCC Licenses to Buyer.
1.17 FINAL ACTION. An action of the FCC that has not been reversed,
stayed, enjoined, set aside, annulled or suspended; with respect to which no
timely petition for reconsideration or administrative or judicial appeal or SUA
SPONTE action of the FCC with comparable effect is pending and as to which the
time for filing any such petition or appeal (administrative or judicial) or for
the taking of any such SUA SPONTE action of the FCC has expired.
1.18 INDEMNIFIED PARTY. Any party described in SECTION 9.3(a) or
SECTION 9.4(a) against which any claim or liability may be asserted by a third
party which would
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give rise to a claim for indemnification under the provisions
of this Agreement by such party.
1.19 INDEMNIFYING PARTY. The party to the Agreement (not the
Indemnified Party) that, in the event of a claim or liability asserted by a
third party against the Indemnified Party which would give rise to a claim for
indemnification under the provisions of this Agreement, may at its own expense,
and upon written notice to the Indemnified Party, compromise or defend such
claim.
1.20 LIEN. Any mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, lien, lease or charge of any kind, whether
voluntarily incurred or arising by operation of law or otherwise, affecting any
Sale Assets or property, including any written or oral agreement to give or
grant any of the foregoing, any conditional sale or other title retention
agreement, and the filing of or agreement to give any financing statement with
respect to any assets or property under the Uniform Commercial Code or
comparable law of any jurisdiction.
1.21 LMA. The Local Programming and Marketing Agreement by and
herewith between Buyer and Seller relating to the Station's programming of even
date herewith.
1.22 MATERIAL ADVERSE CONDITION. A condition which would materially
restrict, limit, increase the cost or burden of or otherwise materially
adversely affect or materially impair the right of Buyer to the ownership, use,
control, enjoyment or operation of the Station or the proceeds therefrom;
provided, however, that any condition which requires that the Station be
operated in accordance with a condition similar to those contained in the
present FCC licenses issued for operation of the Station shall not be deemed a
Material Adverse Condition.
1.23 PERMITTED ENCUMBRANCES. For purposes hereof, "Permitted
Encumbrances" shall mean (i) easements, restrictions, and other similar matters
which will not materially adversely affect the use of the Real Property in the
ordinary course of business; (ii) liens for taxes not due and payable or, that
are being contested in good faith by appropriate proceedings; (iii) mechanics,
materialmen's, carriers', warehousemen's, landlords' or other similar liens in
the ordinary course of business for sums not yet due or which are being
contested in good faith by appropriate proceedings; (iv) deposits or pledges to
secure the performance of bids, tenders, contracts (other than for borrowed
money), leases, statutory obligations, surety or appeal bonds or other deposits
or pledges for purposes of a like general nature made or given in the ordinary
course of business; (v) liens or mortgages that will be released at Closing; and
(vi) zoning ordinances and regulations, including statutes and ordinances
relating to the liens of streets and to other municipal improvements, which will
not materially adversely affect the use of the Real Property in the ordinary
course of business.
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1.24 PERMITTED LIEN. Any statutory lien which secures a payment not
yet due that arises, and is customarily discharged, in the ordinary course of
Seller's business; any easement, right-of-way or similar imperfection in the
Seller's title to its assets or properties that, individually and in the
aggregate, are not material in character or amount and do not and are not
reasonably expected to materially impair the value or materially interfere with
the use of any asset or property of the Seller material to the operation of its
business as it has been and is now conducted.
1.25 PURCHASE PRICE. The consideration to be paid by Buyer to
Seller for purchase of the Sale Assets in an amount equal to Ninety Eight
Million Eight Hundred Thousand Dollars ($98,800,000).
1.26 REAL PROPERTY. Such term shall have the meaning defined in
SECTION 3.6.
1.27 RULES AND REGULATIONS. The rules of the FCC as set forth in
Volume 47 of the Code of Federal Regulations, as well as such other policies of
the Commission, whether contained in the Code of Federal Regulations, or not,
that apply to the Station.
1.28 SALE ASSETS. All of the tangible and intangible assets to be
transferred by Seller to Buyer as set forth in SECTION 2.1.
1.32 SELLER'S THRESHOLD LIMITATION. As provided in SUBSECTION 9.4(b),
the threshold dollar amount for the aggregate of claims, liabilities, damages,
losses, costs and expenses that must be incurred by Seller before Buyer shall be
obligated to indemnify Seller. The Seller's Threshold Limitation shall be Five
Hundred Thousand Dollars ($500,000.00).
1.29 STATION AGREEMENTS. The agreements, commitments, contracts,
leases, and other items described in SECTION 2.1(D), which relate to the
operation of the Station.
1.30 SURVIVAL PERIOD. Such term shall have the meaning defined in
SECTION 9.1.
1.31 TANGIBLE PERSONAL PROPERTY. The personal property described
in SUBSECTION 2.1(a).
ARTICLE II
PURCHASE AND SALE
2.1 SALE ASSETS. On the Closing Date, Seller will sell, transfer,
assign and convey to Buyer, and Buyer will purchase from Seller, free and clear
of all Liens, except Permitted Liens, all of Seller's right, title and interest,
legal and equitable, in and to the tangible and intangible assets (except
Excluded Assets) set forth below.
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(a) TANGIBLE PERSONAL PROPERTY. The equipment, parts,
supplies, furniture, fixtures and other tangible personal property set forth on
SCHEDULE 3.5, together with such modifications, replacements, improvements and
additional items, and subject to such deletions therefrom, made or acquired
between the date hereof and the Closing Date in accordance with the terms and
provisions of this Agreement;
(b) REAL PROPERTY AND LEASES. The Real Property;
(c) LICENSES AND PERMITS. The FCC Licenses and all other
assignable or transferable governmental permits, licenses and authorizations
(and any renewals, extensions, amendments or modifications thereof) now held by
Seller or hereafter obtained by Seller between the date hereof and the Closing
Date, to the extent such other permits, licenses and authorizations pertain to
or are used in the operation of the Station;
(d) STATION AGREEMENTS. All agreements listed on SCHEDULE
3.8; any renewals, extensions, amendments or modifications of those agreements
which are made in the ordinary course of Seller's operation of the Station and
in accordance with the terms and provisions of this Agreement;
(e) RECORDS. True and complete copies of all of the books,
records, accounts, files, logs, ledgers, reports of engineers and other
consultants or independent contractors, pertaining to or used in the operation
of the Station (other than corporate records);
(f) INTANGIBLE PROPERTY. The intangible personal property
"Intangible Personal Property") described on SCHEDULE 3.12.
2.2 EXCLUDED ASSETS. Notwithstanding any provision of this Agreement
to the contrary, Seller shall not transfer, convey or assign to Buyer, but shall
retain all of its right, title and interest in and to, the following assets
owned or held by it on the Closing Date ("Excluded Assets"):
(a) Any and all cash, cash equivalents, cash deposits to
secure contract obligations (except to the extent Seller receives a credit
therefor under SECTION 2.7, in which event the deposit shall be included as part
of the Sale Assets), all inter-company receivables from any affiliate of Seller
and all other accounts receivable, bank deposits, and securities held by Seller
with respect to the Station at the Closing Date.
(b) Any and all claims of Seller with respect to transactions
prior to the Closing including, without limitation, claims for tax refunds and
refunds of fees paid to the FCC.
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(c) All prepaid expenses (except to the extent Seller receives
a credit therefor under SECTION 2.7, in which event the prepaid expense shall be
included as part of the Sale Assets).
(d) All contracts of insurance and claims against insurers.
(e) All employee benefit plans and the assets thereof.
(f) All contracts, permits or licenses that are terminated in
accordance with the terms and provisions of this Agreement or that have expired
prior to the Closing Date in the ordinary course of business, all loans, and all
loan agreements.
(g) All tangible personal property disposed of or consumed
between the date hereof and the Closing Date in accordance with the terms and
provisions of this Agreement.
(h) Seller's corporate records except to the extent such
records pertain to or are used in the operation of the Station, in which case,
to the extent the same are in the possession and control of Seller, Seller shall
deliver materially accurate copies thereof to Buyer.
(i) All commitments, contracts and agreements not
specifically assumed by Buyer pursuant to SECTION 2.1(d), above.
2.3 ASSUMPTION OF LIABILITIES.
(a) At the Closing, Buyer shall assume and agree to perform,
without duplication of Seller's performance, the following liabilities and
obligations of Seller (the "Assumed Obligations"):
(i) Current liabilities of Seller for which Buyer
receives a credit pursuant to SECTION 2.7, but not in excess of the amount of
such credit.
(ii) Liabilities and obligations arising under the
Station Agreements, if any, assumed by and transferred to Buyer in accordance
with this Agreement, but only to the extent such liabilities and obligations
relate to any period of time after the commencement of the LMA.
(iii) Obligations of Seller contained in SECTION 8.1 of
the Asset Purchase Agreement dated as of March 5, 2000 by and between, INTER
ALIA, Salem Communications Corporation and AMFM, Inc. ("AMFM Agreement"), as
amended and assigned, which section relates to the collection of accounts
receivable of Seller's predecessor in interest to the Sale Assets.
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(b) Except for the Assumed Obligations, Buyer shall not assume
or in any manner be liable for any duties, responsibilities, obligations or
liabilities of Seller of any kind or nature, whether express or implied, known
or unknown, contingent or absolute, including, without limitation, any
liabilities to or in connection with Seller's employees whether arising in
connection with the transaction contemplated hereunder or otherwise.
2.4 COMMITMENT FEE
(a) Concurrent with the execution of this Agreement, Buyer
shall deposit One Million Two Hundred Thousand Dollars ($1,200,000) in
immediately available funds, which amount hall be hereinafter referred to as the
"Commitment Fee." Except as otherwise referred to hereunder, the Commitment Fee
shall be deemed to be a non-refundable payment to Seller for its commitment
hereunder.
(b) If Closing does not occur, the Commitment Fee shall be
retained by Seller or repaid to Buyer in accordance with SECTION 10.2, and if
Closing does occur, the Commitment Fee shall be irrevocably retained by Seller.
2.5 PURCHASE PRICE.
(a) The Purchase Price shall be paid by Buyer as follows: At
Closing the Purchase Price shall be paid to Seller at Closing by wire transfer
of immediately available funds.
(b) Buyer shall pay to Seller, or Seller shall pay to Buyer,
the Adjustment Amount in accordance with SECTION 2.7.
2.6 ALLOCATION OF THE PURCHASE PRICE. Within 90 days after Closing,
Buyer and Seller shall agree to an allocation of the Purchase Price based upon
an appraisal report prepared by BIA (the cost of which shall be split one-half
by Buyer and one-half by Seller). Buyer and Seller shall use such allocation for
all reporting purposes in connection with federal, state, and local income and,
to the extent permitted under applicable law, franchise taxes. Buyer and Seller
agree to report such allocation to the Internal Revenue Service in the form
required by Treasury Regulation Section 1.1060-1T.
2.7 ADJUSTMENT OF PURCHASE PRICE.
(a) Except as provided in the LMA, all operating income and
operating expenses of the Station shall be adjusted and allocated between Seller
and Buyer in accordance with generally accepted accounting principles, and an
adjustment in the Purchase Price shall be made as provided in this SECTION 2.7,
to the extent necessary to reflect the principle that all such income and
expenses attributable to the operation of the Station on or before 12:01 a.m.
Mountain Standard Time on the Closing Date shall be
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for the account of Seller, and all income and expenses attributable to the
operation of the Station thereafter shall be for the account of Buyer.
(b) For purposes of making the adjustments pursuant to this
SECTION 2.7, Buyer shall prepare and deliver the Adjustment List to Seller
within thirty (30) days following the Closing Date, or such earlier or later
date as shall be mutually agreed to by Seller and Buyer. The Adjustment List
shall set forth the Adjustment Amount. If the Adjustment Amount is a credit to
the account of Buyer, Seller shall pay such amount to Buyer, and if the
Adjustment Amount is a charge to the account of Buyer, Buyer shall pay such
amount to Seller. In the event Seller disagrees with the Adjustment Amount
determined by Buyer or with any other matter arising out of this subsection, and
Buyer and Seller cannot within sixty (60) days resolve the disagreement
themselves, the parties will refer the disagreement to a firm of independent
certified public accountants, mutually acceptable to Seller and Buyer, whose
decision shall be final and whose fees and expenses shall be allocated between
and paid by Seller and Buyer, respectively, to the extent that such party does
not prevail on the disputed matters decided by the accountants.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Notwithstanding anything to the contrary in this Agreement, Seller
makes no representation or warranty other than the representations and
warranties set forth in this ARTICLE III. Seller hereby represents and warrants
to Buyer as follows:
3.1 ORGANIZATION AND GOOD STANDING. Seller is a corporation, validly
existing and in good standing under the laws of the State of Delaware and
authorized to conduct business in the State of Delaware and each and every
jurisdiction where Seller conducts business. Seller has the requisite power and
authority to execute and to deliver this Agreement and each of the other
Documents to be delivered by Seller pursuant hereto, to consummate the
transactions contemplated hereby and thereby, and to comply with the terms,
conditions, and provisions hereof and thereof.
3.2 AUTHORIZATION AND BINDING EFFECT OF DOCUMENTS. Seller's
execution and delivery of, and the performance of its obligations under, this
Agreement and each of the other Documents, and the consummation by Seller of the
transactions contemplated hereby and thereby, have been duly authorized and
approved by all necessary corporate action on the part of Seller. Seller has the
power and authority to execute, to deliver, and to perform its obligations under
this Agreement and each of the other Documents and to consummate the
transactions hereby and thereby contemplated. This Agreement and each of the
other Documents to be executed by Seller have been, or at or prior to the
Closing will have been or will be, duly executed by Seller. The Documents, when
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executed and delivered by the parties hereto, will constitute legal and valid
obligations of Seller enforceable against it in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting the enforcement of creditors' rights or remedies
generally, and except as may be limited by general principles of equity
(regardless of whether enforceability is sought in a proceeding in equity or at
law).
3.3 ABSENCE OF CONFLICTS. Seller's execution and delivery of,
and the performance of its obligations under, this Agreement and each of the
other Documents by Seller, and the consummation by Seller of the transactions
contemplated hereby and thereby
(a) Do not in any material respect (with or without the giving
of notice or the passage of time or both) violate (or result in the creation of
any claim, lien, charge or encumbrance on any of the assets or properties of
Seller under) any provision of law, rule or regulations or any order, judgment,
injunction, decree or ruling applicable to Seller in any manner which would have
a material adverse effect on the assets, business, operation or financial
condition or results of operations of Seller;
(b) Do not (with or without the giving of notice or the
passage of time or both) conflict with or result in a breach or termination of,
or constitute a default or give rise to a right of termination or acceleration
under, the articles of incorporation or bylaws of Seller or any lease,
agreement, commitment, or other instrument which Seller is a party to, bound by,
or by which any of its assets or properties may be bound.
3.4 GOVERNMENTAL CONSENTS AND CONSENTS OF THIRD PARTIES. Except for
such consents as may be required by the FCC, DOJ and the FTC and as are
disclosed on SCHEDULE 3.8, to Seller's actual knowledge, the execution and
delivery of, and the performance of its obligations under, this Agreement and
each of the other Documents by Seller, and the consummation by Seller of the
transactions contemplated hereby and thereby, do not 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.
3.5 TANGIBLE PERSONAL PROPERTY. The list of Tangible Personal
Property set forth on SCHEDULE 3.5 is a complete and correct list of all
material items of tangible personal property included in the Sale Assets. Seller
has title to the Tangible Personal Property free and clear of Liens other than
Permitted Liens.
3.6 REAL PROPERTY. The real property described on SCHEDULE 3.6
constitutes a description in all material respects of all interests, including
all leases, in real estate included in the Sale Assets. Said real property,
together with all improvements affixed thereto, is herein defined as the "Real
Property." To Seller's knowledge, the Real Property is not subject to any suit
for condemnation or taking by any public authority.
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3.7 FCC LICENSES. Seller is the holder of the FCC Licenses listed on
SCHEDULE 3.7, and except as set forth thereon, the FCC Licenses are in full
force and effect and have not been revoked, suspended, canceled, rescinded, or
terminated. There is not pending any action by or before the FCC to revoke, to
suspend, to cancel, to rescind or materially adversely to 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 Station. The Station is operating
in compliance in all material respects with the FCC Licenses, the Act, and the
Rules and Regulations of the FCC.
3.8 STATION AGREEMENTS. Each of the Station Agreements 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 Agreements in all
material respects, and is not in material default thereunder, and to Seller's
knowledge, no other party to any of the Station Agreements is in default
thereunder in any material respect.
3.9 LITIGATION. There is no action, suit, or proceeding pending
against Seller with respect to the Station that will subject Buyer to liability
or that questions the legality or propriety of the transactions contemplated by
this Agreement.
3.10 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 that are applicable to the operation
of the Station. To the actual knowledge of Seller, there is no action, suit,
proceeding pending or threatened against the Seller in respect of the Station
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 Station (except those affecting the
industry generally).
3.11 ENVIRONMENTAL MATTERS. 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. To Seller's knowledge, Seller has complied in all
material respects with all environmental, health, and safety laws applicable to
the Station.
3.12 INTANGIBLE PROPERTY. SCHEDULE 3.12 contains a description of the
material Intangible Personal Property included in the Sale Assets. Except as set
forth on SCHEDULE 3.12, Seller has received no notice of any claim that its use
of the Intangible Personal Property infringes upon any third party rights. To
Seller's actual knowledge, Seller has
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the right to use the Intangible Personal Property free and clear of Liens other
than Permitted Liens.
3.13 ABSENCE OF INSOLVENCY. No insolvency proceedings of any
character including, without limitation, bankruptcy, receivership,
reorganization, composition or arrangement with creditors, voluntary or
involuntary, affecting the Seller are pending or, to the best knowledge of
Seller, threatened, and Seller has made no assignment for the benefit of
creditors, nor taken any action with a view to, or which would constitute the
basis for the institution of, any such insolvency proceedings.
3.14 BROKER'S OR FINDER'S FEES. No agent, broker, investment banker,
or other person or firm acting on behalf of or under the authority of Seller or
any affiliate of Seller is or will be entitled to any broker's or finder's fee
or any other commission or similar fee, directly or indirectly, in connection
with the transactions contemplated by this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Indiana. Buyer has all requisite corporate power to own, to operate, and to
lease its properties and to carry on its business as it is now being conducted
and as the same will be conducted following the Closing.
4.2 AUTHORIZATION AND BINDING EFFECT OF DOCUMENTS. Buyer's execution
and delivery of, and the performance of its obligations under, this Agreement
and each of the other Documents, and the consummation by Buyer of the
transactions contemplated hereby and thereby, have been duly authorized and
approved by all necessary corporate action on the part of Buyer. Buyer has the
power and authority to execute, to deliver, and to perform its obligations under
this Agreement and each of the other Documents and to consummate the
transactions hereby and thereby contemplated. This Agreement and each of the
other Documents to be executed by Buyer have been, or at or prior to the Closing
will have been or will be, duly executed by Buyer. The Documents, when executed
and delivered by the parties hereto, will constitute the valid and legally
binding agreement of Buyer, enforceable against Buyer in accordance with their
terms, except as may be limited by bankruptcy, insolvency, or other similar laws
affecting the enforcement of creditors' rights or remedies generally, and except
as may be limited by general principles of equity (regardless of whether such
enforceability is sought in a proceeding in equity or at law).
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4.3 ABSENCE OF CONFLICTS. Buyer's execution and delivery of, and the
performance of its obligations under, this Agreement and each of the other
Documents and the consummation by Buyer of the transaction contemplated hereby
and thereby:
(a) Do not in any material respect (with or without the giving
of notice or the passage of time or both) violate (or result in the creation of
any claim, lien, charge or encumbrance on any of the assets or properties of
Buyer under) any provision of law, rule or regulation or any order, judgment,
injunction, decree or ruling applicable to Buyer in any manner which would have
a material adverse effect on the assets, business, operation or financial
condition or results of operations of Buyer;
(b) Do not (with or without the giving of notice or the
passage of time or both) conflict with or result in a breach or termination of,
or constitute a default or give rise to a right of termination or acceleration
under, the articles of incorporation or bylaws of Buyer or any lease, agreement,
commitment, or other instrument which Buyer is a party to, bound by, or by which
any of its assets or properties may be bound.
4.4 GOVERNMENTAL CONSENTS AND CONSENTS OF THIRD PARTIES. Except fo
any required consent of the FCC. DOJ or the FTC, Buyer's execution and delivery
of, and the performance of its obligations under, this Agreement and each of the
other Documents and the consummation by Buyer of the transaction contemplated
hereby and thereby, do not require the consent, waiver, approval, permit,
license, clearance or authorization of, or any declaration or filing with, any
court or public agency or other authority, or the consent of any person under
any agreement, arrangement or commitment of any nature to which Buyer is a party
or by which it is bound, the failure of which to obtain would have a material
adverse effect on the assets, business, operation or financial condition or
results of operations of Buyer.
4.5 QUALIFICATION.
(a) Buyer has no knowledge after due inquiry of any facts
concerning Buyer or any other person with an attributable interest in Buyer (as
such term is defined under the Rules and Regulations) which, under present law
(including the Act) and the Rules and Regulations, would (i) disqualify Buyer
from being the holder of the FCC Licenses, the owner of the Sale Assets or the
operator of the Station upon consummation of the transactions contemplated by
this Agreement, or (ii) raise a substantial and material question of fact
(within the meaning of Section 309(e) of the Act) regarding Buyer's
qualifications. Buyer has the current financial capacity to consummate the
transaction contemplated hereby.
(b) Without limiting the foregoing SECTION 4.5(a), Buyer shall
make the affirmative certifications provided in Section III of FCC Form 314, or
as may be required on any form required by the FCC to obtain its consent to this
transaction, at the time of filing of such form with the FCC as contemplated by
SECTION 5.2.
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4.6 BROKER'S OR FINDER'S FEES. No agent, broker, investment banker,
or other person or firm acting on behalf of or under the authority or Buyer or
any affiliate of Buyer is or will be entitled to any broker's or finder's fee or
any other commission or similar fee, directly or indirectly, in connection with
transactions contemplated by this Agreement.
4.7 LITIGATION. There are no legal, administrative, arbitral, or
other proceedings or governmental investigations pending or, to the knowledge of
Buyer, threatened against Buyer that would give any third party the right to
enjoin the transactions contemplated by this Agreement.
ARTICLE V
TRANSACTIONS PRIOR TO THE CLOSING DATE
5.1 CONDUCT OF THE STATION'S BUSINESS PRIOR TO THE CLOSING DATE.
Subject to the terms and conditions of the LMA, Seller covenants and agrees with
Buyer that between the date hereof and the Closing Date, unless the Buyer
otherwise agrees in writing (which agreement shall not be unreasonably withheld
or delayed), Seller shall:
(a) Use reasonable commercial efforts to maintain insurance
upon all of the tangible Sale Assets in such amounts and of such kind comparable
to that in effect on the date hereof with respect to such Sale Assets and with
respect to the operation of the Station, with insurers of substantially the same
or better financial condition;
(b) Operate the Station and otherwise conduct its business in
all material respects in accordance with the terms or conditions of its FCC
Licenses, the Rules and Regulations, the Act and all other rules and
regulations, statutes, ordinances and orders of all governmental authorities
having jurisdiction over any aspect of the operation of the Station, except
where the failure to so operate the Station would not have a material adverse
effect on the Sale Assets or the operation of the Station or on the ability of
Seller to consummate the transactions contemplated hereby;
(c) Comply in all material respects with all Station
Agreements now or hereafter existing that are material, individually or in the
aggregate, to the operation of the Station;
(d) Promptly notify Buyer of any material default by, or claim
of default against, any party under any Station Agreements that are material,
individually or in the aggregate, to the operation of the Station, and any event
or condition that, with notice or lapse of time or both, would constitute an
event of default under such Station Agreements;
13
(e) Not mortgage, pledge or subject to any Lien other than a
Permitted Lien (except in the ordinary course of business) any of the Sale
Assets;
(f) Not sell, lease or otherwise dispose of, nor agree to
sell, lease or otherwise dispose of, any of the Sale Assets, except for
dispositions in the ordinary course of business;
(g) Not amend or terminate any Station Agreement, other than
in the ordinary course of business;
(h) Not introduce any material change with respect to the
operation of the Station including, without limitation, any material changes in
the broadcast hours of the Station or any other material change in the Station's
programming policies, except such changes as in the sole discretion of Seller,
exercised in good faith after consultation with Buyer, are required by the
public interest;
(i) Notify Buyer of any material litigation pending or
threatened against the Station or any material damage to or destruction of any
assets included or to be included in the Sale Assets of which Seller receives
actual knowledge; and,
(j) Not enter into new Station Agreements 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 Station than could be
obtained on an arms-length basis from an unaffiliated third party and otherwise
comply with this Section), without Buyer's prior written consent, or enter into
trade agreements which in the aggregate exceed related barter assets.
5.2 GOVERNMENTAL CONSENTS.
(a) Seller and Buyer shall file with the FCC, within five (5)
Business Days after the execution of this Agreement, such applications and other
documents in the name of Seller or Buyer, as appropriate, as may be necessary or
advisable to obtain the FCC Order. Seller and Buyer shall take all commercially
reasonable steps necessary to prosecute such filings with diligence and shall
diligently oppose any objections to, appeals from, or petitions to reconsider
such approval of the FCC, to the end that the FCC Order and a Final Action with
respect thereto may be obtained as soon as practicable. Buyer shall not
knowingly take, and Seller covenants that Seller shall not knowingly take, any
action that party knows or has reason to know would materially and adversely
affect or materially delay issuance of the FCC Order or materially and adversely
affect or materially delay its becoming a Final Action without a Material
Adverse Condition, unless such action is requested or required by the FCC, its
staff, or the Rules and Regulations. Should Buyer or Seller become aware of any
facts that could reasonably be expected materially and adversely to affect or
materially to delay issuance of the FCC
14
Order without a Material Adverse Condition (including, but not limited to, in
the case of Buyer, any facts that would reasonably be expected to disqualify
Buyer from controlling the Station), such party shall promptly notify the other
party thereof in writing and both parties shall cooperate to take all steps
necessary or desirable to resolve the matter expeditiously and to obtain the
FCC's approval of matters pending before it.
(b) Within five (5) business days after the execution of this
Agreement, Buyer and Seller shall make any required filings with the Federal
Trade Commission ("FTC") 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. 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 consent
from the DOJ or FTC (collectively "DOJ Consent"), if any required, or HSR
Clearance under the HSR Act, 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.
5.3 OTHER CONSENTS. Seller shall use its reasonable best efforts to
obtain the consent or waivers to the transactions contemplated by this Agreement
required under any assumed Station Agreements; provided that Seller shall not be
required to pay or to grant any material consideration in order to obtain any
such consent or waiver.
5.4 TAX RETURNS AND PAYMENTS. All taxes pertaining to ownership of
the Sale Assets or operation of the Station prior to the Closing Date will be
timely paid; provided that Seller shall not be required to pay any such tax so
long as the validity thereof shall be contested in good faith by appropriate
proceedings and Seller shall have set aside adequate reserves with respect to
any such tax.
5.5 ACCESS PRIOR TO CLOSING DATE. Prior to the Closing, Buyer and
its representatives may make such reasonable investigation of the assets and
business of the Station as it may desire, and Seller shall give to Buyer, its
engineers, counsel, accountants, and other representatives reasonable access
during normal business hours throughout the period prior to the Closing to
personnel and all of the assets, books, records and files of or pertaining to
the Station, provided that (i) Buyer shall give Seller reasonable advance notice
of each date on which Buyer or any such other person or entity desires such
access, (ii) each person (other than an officer of Buyer) shall, if requested by
Seller, be accompanied by an officer or their representative of Buyer approved
by Seller, which approval shall not be unreasonably withheld, (iii) the
investigations at the offices
15
of Seller shall be reasonable in number and frequency, and (iv) all
investigations shall be conducted in such a manner as not to damage physically
any property or to constitute a disruption of the operation of the Station or
Seller. Seller shall furnish to Buyer during such period all documents and
copies of documents and information concerning the business and affairs of
Seller and the Station as Buyer may reasonably request.
5.6 CONFIDENTIALITY: PRESS RELEASE. All information, data and
materials furnished or to be furnished to either party with respect to the other
party in connection with this transaction or pursuant to this Agreement are
confidential. Each party agrees that prior to Closing (a) it shall not disclose
or otherwise make available, at any time, any such information, data or material
to any person who does not have a confidential relationship with such party; (b)
it shall protect such information, data and material with a high degree of care
to prevent the disclosure thereof; and (c) if, for any reason, this transaction
is not consummated, all information, data or material concerning the other party
obtained by such party, and all copies thereof, will be returned to the other
party. After Closing, neither party will disclose or otherwise make available to
any person any of such information, data or material concerning the other party,
except as may be necessary or appropriate in connection with the operation of
the Station by Buyer. Each party shall use its reasonable efforts to prevent the
violation of any of the foregoing confidentiality provisions by its respective
representatives. Notwithstanding the foregoing, nothing contained herein shall
prohibit Buyer or Seller from:
(i) Using such information, data and materials in
connection with any action or proceeding brought or any claim asserted by Buyer
or Seller with respect to any breach by the other of any representation,
warranty or covenant made in or pursuant to this Agreement; or
(ii) Supplying or filing such information, data or
materials to or with the FCC, DOJ, FTC or SEC or any other valid governmental or
court authority to the extent required by law or reasonably necessary to obtain
any consent, waiver, amendment, modification, approval, authorization, permit or
license which may be necessary to effectuate this Agreement, and to consummate
the transaction contemplated herein.
Except as required by law, neither party shall make a public
announcement of the transactions contemplated by this Agreement or the other
Documents without the express written consent of the other, which consent shall
not be unreasonably withheld, conditioned or delayed.
5.7 REASONABLE BEST EFFORTS. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use its reasonable best efforts
to take all action and to do all things necessary, proper or advisable to
satisfy any condition to the parties' obligations hereunder in its power to
satisfy and to consummate and make effective as soon as practicable the
transactions contemplated by this Agreement.
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5.8 FCC REPORTS. Seller shall continue to file, on a current basis
until the Closing Date, all reports and documents required to be filed with the
FCC with respect to the Station.
5.9 CONVEYANCE FREE AND CLEAR OF LIENS. At or prior to the Closing,
Seller shall obtain executed releases, in suitable form for filing and otherwise
in form and substance reasonably satisfactory to Buyer, of any security
interests granted in the Sale Assets and properties as security for payment of
loans and other obligations or judgments and of any other Liens on the Sale
Assets. At the Closing, Seller shall transfer and convey to Buyer all of the
Sale Assets free and clear of all Liens except Permitted Liens.
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ARTICLE VI
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BUYER TO CLOSE
Buyer's obligation to close the transaction contemplated by this
Agreement is subject to the satisfaction, on or prior to the Closing Date, of
each of the following conditions, unless waived by Buyer in writing:
6.1 PERFORMANCE OF AGREEMENTS. The representations and warranties of
Seller made in this Agreement shall be true and correct in all material respects
and the covenants and agreements to be complied with an 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.
6.2 FCC AND OTHER CONSENTS.
(a) The FCC Order, the DOJ Consent and the HSR Clearance (to
the extent the same are required by law) shall have been issued without any
condition materially adverse to Buyer.
(b Seller shall have satisfied all material conditions which
the FCC Order, the DOJ Consent and the HSR Clearance or any order, ruling or
decree of any judicial or administrative body relating thereto or in connection
therewith specifies and requires to be satisfied by Seller prior to transfer of
the FCC Licenses to Buyer.
(c) All other material authorizations, consents, approvals and
clearances of federal, state or local governmental agencies required to permit
the consummation by Buyer of the transactions contemplated by this Agreement
including, without limitation, the assignment of any FCC Authorization requested
by Buyer, shall have been obtained; all material statutory and regulatory
requirements for such consummation shall have been fulfilled; and no such
authorizations, consents, approvals or clearances shall contain any conditions
that individually or in the aggregate would have a material adverse effect on
the operation of the Station.
6.4 ADVERSE PROCEEDINGS. Neither Buyer nor any affiliate of Buyer
shall be subject to any ruling, decree, order or injunction restraining,
imposing material limitations on or prohibiting (i) the consummation of the
transactions contemplated hereby or (ii) its participation in the operation,
management, ownership or control of the Station; and no litigation, proceeding
or other action seeking to obtain any such ruling, decree, order or injunction
shall be pending. No governmental authority having jurisdiction shall have
notified any party to this Agreement that consummation of the
18
transaction contemplated hereby would constitute a violation of the laws of the
United States or of any state or political subdivision or that it intends to
commence proceedings to restrain such consummation or to force divestiture,
unless such governmental authority shall have withdrawn such notice. No
governmental authority having jurisdiction shall have commenced any such
proceeding.
6.5 DELIVERY OF CLOSING DOCUMENTS. Seller shall have delivered
or caused to be delivered to Buyer on the Closing Date each of the Documents
required to be delivered pursuant to SECTION 8.2.
ARTICLE VII
CONDITIONS PRECEDENT OF THE
OBLIGATION OF SELLER TO CLOSE
The obligation of Seller to close the transaction contemplated by this
Agreement is subject to the satisfaction, on or prior to the closing Date, of
each of the following conditions, unless waived by Seller in writing:
7.1 PERFORMANCE OF AGREEMENTS. The representations and warranties of
Buyer made in this Agreement shall be true and correct in all material respects
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.
7.2. FCC AND OTHER CONSENTS.
(a) The FCC Order, the DOJ Consent and the HSR Clearance (to
the extent the same are required by law) shall have been issued by the FCC and
shall have become effective under the rules of the FCC, without any condition
materially adverse to Seller.
(b) Conditions which the FCC Order or any order, ruling or
decree of any judicial or administrative body relating thereto or in connection
therewith specifies and requires to be satisfied by Buyer prior to transfer of
the FCC Licenses to Buyer shall have been satisfied by Buyer.
(c) All other authorizations, consents, approvals and
clearances of all federal, state and local governmental agencies required to
permit the consummation by Seller of the transactions contemplated by this
Agreement shall have been obtained; all statutory and regulatory requirements
for such consummation shall have been fulfilled;
19
and no such authorizations, consents, approvals or clearances shall contain any
conditions that individually or in the aggregate would have any material adverse
effect on Seller.
7.3 ADVERSE PROCEEDINGS. Seller shall not be subject to any ruling,
decree, order or injunction restraining, imposing material limitations on or
prohibiting the consummation of the transactions contemplated hereby. No
governmental authority having jurisdiction shall have notified any party to this
Agreement that consummation of the transactions contemplated hereby would
constitute a violation of the laws of the United States or of any state or
political subdivision or that it intends to commence proceedings to restrain
such consummation or to force divestiture, unless such governmental authority
shall have withdrawn such notice. No governmental authority having jurisdiction
shall have commenced any such proceeding.
7.4 DELIVERY OF CLOSING DOCUMENTS AND PURCHASE PRICE. Buyer shall
have delivered or caused to be delivered to Seller on the Closing Date each of
the Documents required to be delivered pursuant to SECTION 8.3. Seller shall
have received payment of the Purchase Price with the form of payment set forth
in SECTION 2.5.
ARTICLE VIII
CLOSING
8.1 TIME AND PLACE. Unless otherwise agreed to in advance by the
parties, Closing shall take place in person or via facsimile at the offices of
Seller's counsel in Camarillo, California, or at such other place as the parties
agree to in writing, at 10:00 a.m. Pacific Time on the date (the "Closing Date")
that is the later of (i) the fifth (5th) Business Day after the Applicable Date;
or (ii) the date as soon as practicable following satisfaction or waiver of the
conditions precedent hereunder. The "Applicable Date" shall be the later of
January 1, 2001 or the date on which the FCC Order, DOJ Consent and HSR
Clearance (to the extent the same are required by law) without any Material
Adverse Condition or condition materially adverse to Seller have become
effective.
8.2 DOCUMENTS TO BE DELIVERED TO BUYER BY SELLER. At the Closing,
Seller shall deliver or cause to be delivered to Buyer the following:
(a) Certified resolutions of Seller's Board of Directors and
Shareholders approving the execution and delivery of this Agreement and each of
the other Documents and authorizing the consummation of the transactions
contemplated hereby and thereby.
(b) A xxxx of sale and other instruments of transfer and
conveyance transferring to Buyer all right, title and interest of Seller in and
to the Tangible Personal Property.
20
(c) Executed releases, in suitable form for filing and
otherwise in form and substance reasonably satisfactory to Buyer, of any
security interests granted in the Sale Assets as security for payment of loans
and other obligations and of any other Liens (other than Permitted Liens).
(d) An instrument or instruments assigning to Buyer all right,
title and interest of Seller in and to all Station Agreements, including leases
for the Real Property, being assumed by Buyer.
(e) An instrument assigning to Buyer all right, title and
interest of Seller in the FCC Licenses, all pending applications relating to the
Station before the FCC, and any remaining Sale Assets not otherwise conveyed.
(f) An instrument assigning to Buyer all rights, title and
interest of Seller to the Intangible Personal Property.
(g) Such additional information and materials as Buyer shall
have reasonably requested, including without limitation, evidence that all
consents and approvals required as a condition to Buyer's obligation to close
hereunder have been obtained.
8.3 DOCUMENTS TO BE DELIVERED TO SELLER BY BUYER. At the Closing
Buyer shall deliver or cause to be delivered to Seller the following:
(a) Certified resolutions of Buyer's Board of Directors
approving the execution and delivery of this Agreement and each of the other
Documents and authorizing the consummation of the transaction contemplated
hereby and thereby.
(b) The Purchase Price as set forth in SECTION 2.5.
(c) The agreement of Buyer assuming the obligations under
any Station Agreements being assumed by Buyer.
(d) All fees owed Seller under the LMA.
(e) Such additional information and materials as Seller shall
have reasonably requested.
8.4 STATION AGREEMENTS. Buyer and Seller acknowledge that certain of
the Station Agreements, to be included in the Sale Assets, and the rights and
benefits thereunder necessary or appropriate or relating to the conduct of the
business and activities of Seller and/or the Station may not, by their terms, be
assignable. Notwithstanding anything in this Agreement to the contrary, this
Agreement shall not
21
constitute an agreement to assign such Station Agreement, and Buyer shall not be
deemed to have assumed the same or to be required to perform any obligations
thereunder, if an attempted assignment thereof, without the consent of a third
party thereto, would constitute a breach thereof or in any way affect the rights
under such Station Agreement of Buyer or Seller thereunder. In such event,
Seller will cooperate with Buyer to provide for Buyer all benefits to which
Seller is entitled under such Station Agreement, and any transfer or assignment
to Buyer by Seller of any such Station Agreement or any right or benefit arising
thereunder or resulting therefrom which shall require the consent or approval of
any third party shall be made subject to such consent or approval being
obtained. Seller shall, without further consideration therefor, pay, assign and
remit to Buyer promptly all monies, and, to the extent permitted, all other
rights or consideration received or obtained, or which may be received or
obtained in respect of performance of such Station Agreements.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATION AND WARRANTIES. All representations
and warranties contained in this Agreement or in any other Document shall
survive the Closing for the Survival Period and the Closing shall not be deemed
a waiver by either party of the representations, warranties, covenants or
agreements of the other party contained herein or in any other Document. No
claim may be brought under this Agreement or any other Document unless written
notice describing in reasonable detail the nature and basis of such claim is
given on or prior to the last day of the Survival Period. In the event such a
notice is so given, the right to indemnification with respect thereto under this
Article shall survive the Survival Period until such claim is finally resolved
and any obligations with respect thereto are fully satisfied. For purposes of
this agreement the "Survival Period" shall be for six (6) months.
9.2 INDEMNIFICATION IN GENERAL. Buyer and Seller agree that the
rights to indemnification and to be held harmless set forth in this Agreement
shall, as between the parties hereto and their respective successors and
assigns, be exclusive of all rights to indemnification and to be held harmless
that such party (or its successors or assigns) would otherwise have by statute,
common law or otherwise.
9.3 INDEMNIFICATION BY SELLER.
(a) Subject to the provisions of SECTION 9.3(b) below and
SECTION 10.2 below, Seller shall indemnify and hold harmless Buyer and any
officer, director, agent, employee and affiliate thereof with respect to any and
all demands, claims, actions, suits, proceedings, assessments, judgments, costs,
losses, damages, liabilities and expenses (including reasonable attorneys' fees)
relating to or arising out of:
22
-
(i) Any breach or non-performance by Seller of any of
its representations, warranties, covenants or agreements set forth in this
Agreement or any other Documents;
(ii) The ownership or operation by Seller of the Station
or the Sale Assets on or prior to the Closing Date;
(iii) All other liabilities and obligations of Seller
other than the Assumed Obligations and the obligations of Seller contained in
SECTION 10.4 of the AMFM Agreement;
(iv) Noncompliance by Seller with the provisions of the
Bulk Sales Act, if applicable, in connection with the transaction contemplated
hereby; or
(v) Any violation of any Environmental Laws by Seller
or the existence of any Hazardous Materials on the Real Property on or before
Closing.
(b) Except for any amounts owed by Seller to Buyer under
SECTION 9.3(a)(iii) and SECTION 2.7, if Closing occurs, Seller shall not be
obligated until the aggregate amount of such claims, liabilities, damages,
losses, costs and expenses exceeds Buyer's Threshold Limitation, in which case
Buyer shall then be entitled to indemnification of the amount in excess of the
Buyer's Threshold Limitation; provided in no event shall the amount of Seller's
obligations under this Article IX exceed One Million Dollars ($1,000,000).
9.4 INDEMNIFICATION BY BUYER.
(a) Subject to the provisions of SUBSECTION (b) below and
SECTION 10.2 below, Buyer shall indemnify and hold harmless Seller and any
officer, director, agent, employee and affiliate thereof with respect to any and
all demands, claims, actions, suits, proceedings, assessments, judgments, costs,
losses, damages, liabilities and expenses (including reasonable attorneys' fees)
relating to or arising out of:
(i) Any breach or non-performance by Buyer of any of
its representations, warranties, covenants or agreements set forth in this
Agreement or any other Document;
(ii) The ownership or operation of the Station after the
Closing Date or Buyer's operation of the Station after the commencement of the
LMA;
(iii) The Assumed Obligations;
23
(iv) Seller's failure to satisfy the obligations of
Seller contained in SECTION 10.4 of the AMFM Agreement, which section relates to
the employment of transferred employees; or
(v) All other liabilities or obligations of Buyer.
(b) Except for any amounts owed by Buyer to Seller under
SECTION 2.7, SECTION 9.4(a)(iii) and SECTION 9.4(a)(iv), if Closing occurs,
Buyer shall not be obligated until the aggregate amount of such claims,
liabilities, damages, losses, costs and expenses exceeds Seller's Threshold
Limitation, in which case Seller shall then be entitled to indemnification of
the amount in excess of Seller's Threshold Limitation; provided in no event
shall the amount of Buyer's obligation under this Article IX exceed One Million
Dollars ($1,000,000).
9.5 INDEMNIFICATION PROCEDURES. In the event that an Indemnified
Party may be entitled to indemnification hereunder with respect to any asserted
claim of, or obligation or liability to, any third party, such party shall
notify the Indemnifying Party thereof, describing the matters involved in
reasonable detail, and the Indemnifying Party shall be entitled to assume the
defense thereof upon written notice to the Indemnified Party with counsel
reasonably satisfactory to the Indemnified Party; provided, that once the
defense thereof is assumed by the Indemnifying Party, the Indemnifying Party
shall keep the Indemnified Party advised of all developments in the defense
thereof and any related litigation, and the Indemnified Party shall be entitled
at all times to participate in the defense thereof at its own expense. If the
Indemnifying Party fails to notify the Indemnified Party of its election to
defend or contest its obligation to indemnify under this ARTICLE IX, the
Indemnified Party may pay, compromise, or defend such a claim without prejudice
to any right it may have hereunder.
ARTICLE X
TERMINATION; LIQUIDATED DAMAGES
10.1 TERMINATION. If Closing shall not have previously occurred, this
Agreement shall terminate upon the earliest of:
(a) The giving of written notice from Seller to Buyer, or from
Buyer to Seller, if:
(i) Seller gives such termination notice and Seller is
not at such time in material default hereunder, or Buyer gives such termination
notice and Buyer is not at such time in material default hereunder; and
(ii) Any of the following occurs:
24
(A) Any of the representations or warranties
contained herein of Buyer (if such termination notice is given by Seller), or of
Seller (if such termination notice is given by Buyer), are inaccurate in any
material respect and materially adverse to the party giving such termination
notice unless the inaccuracy has been induced by or is the result of actions or
omissions of the party giving such termination notice; or
(B) Any material obligation to be performed by
Buyer (if such termination notice is given by Seller) or by Seller (if such
termination notice is given by Buyer) is not timely performed in any material
respect and materially adverse to the party giving such termination notice
unless the lack of timely performance has been induced by or is the result of
actions or omissions of the party giving such termination notice; or
(C) Any condition (other than those referred to
in foregoing CLAUSES (A) and (B)) to the obligation to close the transaction
contemplated herein of the party giving such termination notice has not been
timely satisfied; and
any such inaccuracy, failure to perform or non-satisfaction of a condition
neither has been cured nor satisfied within twenty (20) days after written
notice thereof from the party giving such termination notice nor waived in
writing by the party giving such termination notice.
(b) Written notice from Seller to Buyer, at any time after
January 1, 2002; provided that termination shall not occur upon the giving of
such termination notice by Seller if Seller is at such time in material default
hereunder. Written notice from Buyer to Seller, at any time after January 1,
2002; provided that termination shall not occur upon the giving of such
termination notice by Buyer if Buyer is at such time in material default
hereunder.
(c) Written notice from Seller to Buyer, or from Buyer to
Seller, at any time following a determination by the FCC that the application
for consent to assignment of the FCC Licenses has been designated for hearing;
provided that the party which is the subject of the hearing (or whose alleged
actions or omissions resulted in the designation for hearing) may not elect to
terminate under this SUBSECTION 10.1(c).
(d) Written notice from Buyer to Seller or Seller to Buyer of
any time following an "Event of Default," as such term is defined in the LMA.
10.2 OBLIGATIONS UPON TERMINATION.
(a) In the event this Agreement is terminated pursuant to
SUBSECTION 10.1(a)(ii)(A) OR (B), the aggregate liability of Buyer for breach
hereunder shall be limited as provided in SECTIONS 10.2(c) AND 10.2(e) below,
and the aggregate liability for
25
Seller for breach hereunder shall be limited as provided in SECTIONS 10.2(d) AND
10.2(e) below. In the event this Agreement is terminated for any other reason,
neither party shall have any liability hereunder.
(b) Upon termination of this Agreement, Buyer shall be
entitled to the repayment of the Commitment Fee (i) if such termination is
effected by Buyer's giving of valid written notice to Seller pursuant to
SECTIONS 10.1, or (ii) if such termination is effected by Seller's giving of
valid written notice to Buyer pursuant to SECTIONS 10.1(a)(ii)(C), 10.1(b) OR
10.1(c). If Buyer is entitled to repayment of the Commitment Fee, Seller shall
promptly repay such amount to Buyer.
(c) If this Agreement is terminated by Seller's giving of
valid written notice to Buyer pursuant to SECTION 10.1(a)(ii)(A) OR (B), Buyer
agrees that Seller shall, in addition to its right to retain the Commitment Fee,
be entitled to receive upon such termination, as liquidated damages and not as a
penalty, Twenty-Three Million Eight Hundred Thousand Dollars ($23,800,000)
("Liquidated Damages Amount"). Seller shall be entitled to pursue any remedy
available to Seller at law or equity to recover from Buyer the full amount of
the Liquidated Damages Amount, provided the total monetary damages to which
Seller shall be entitled, less the Commitment Fee, shall not exceed the
Liquidated Damages Amount. SELLER'S RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT
SHALL CONSTITUTE PAYMENT OF LIQUIDATED DAMAGES HEREUNDER AND NOT A PENALTY, AND
SHALL BE SELLER'S SOLE REMEDY AT LAW OR IN EQUITY FOR BUYER'S BREACH HEREUNDER
IF CLOSING DOES NOT OCCUR. BUYER AND SELLER EACH ACKNOWLEDGE AND AGREE THAT THE
LIQUIDATED DAMAGE AMOUNT IS REASONABLE IN LIGHT OF THE ANTICIPATED HARM WHICH
WILL BE CAUSED BY BUYER'S BREACH OF THIS AGREEMENT, THE DIFFICULTY OF PROOF OF
LOSS, THE INCONVENIENCE AND NON-FEASIBILITY OF OTHERWISE OBTAINING AN ADEQUATE
REMEDY, AND THE VALUE OF THE TRANSACTION TO BE CONSUMMATED HEREUNDER.
Seller: Buyer:
----------------- -----------------
(d) Notwithstanding any provision of this Agreement to the
contrary, if this Agreement is terminated by Buyer's giving of written notice to
Seller pursuant to SECTIONS 10.1, Buyer shall not be entitled to damages or
indemnification from Seller.
(e) In any dispute between Buyer and Seller as to which party
is entitled to all or a portion of the Commitment Fee, the prevailing party
shall receive, in addition to that portion of the Commitment Fee to which it is
entitled, an amount equal to interest on that portion at the rate of ten percent
(10%) per annum, calculated from the date the prevailing party's demand for all
or a portion of the Commitment Fee is received by Seller.
26
10.3 TERMINATION NOTICE. Each notice given by a party pursuant to
SECTION 10.1 to terminate this Agreement shall specify the subsection (and
clause or clauses thereof) of SECTION 10.1 pursuant to which such notice is
given.
27
ARTICLE XI
CASUALTY
Upon the occurrence of any casualty loss, damage or destruction
material to the operation of the Station prior to the Closing, Seller shall
promptly give Buyer written notice setting forth in detail the extent of such
loss, damage or destruction and the cause thereof if known. Except as otherwise
provided in the LMA, Seller shall use its reasonable efforts to promptly
commence and thereafter to diligently proceed to repair or replace any such
lost, damaged or destroyed property.
ARTICLE XII
CONTROL OF STATION
Subject to the terms and conditions of the LMA, between the date of
this Agreement and the Closing Date, Buyer shall not control, manage, or
supervise the operation of the Station or conduct of its business, all of which
shall remain the sole responsibility and under the control of Seller, subject to
Seller's compliance with this Agreement.
ARTICLE XIII
MISCELLANEOUS
13.1 FURTHER ACTIONS. From time to time before, at and after the
Closing, each party, at its expense and without further consideration, will
execute and deliver such documents to the other party as the other party may
reasonably request in order more effectively to consummate the transactions
contemplated hereby.
13.2 ACCESS AFTER THE CLOSING DATE.
(a) After the Closing and for a period of twelve (12) months,
Buyer shall provide Seller and Seller's counsel, accountants, and other
representatives with reasonable access during normal business hours to the
books, records, property, personnel, contracts, commitments, and documents of
the Station pertaining to transactions occurring prior to the Closing Date when
reasonably requested by Seller, and Buyer shall retain such books and records
for the normal document retention period of Buyer. At the request and expense of
Seller, Buyer shall deliver copies of any such books and records to Seller.
(b) After the Closing and for a period of twelve (12) months,
upon the request and expense of Buyer, Seller shall provide Buyer and Buyer's
counsel,
28
accountants, and other representatives copies of any audited financial
information for the last three fiscal years and the present year, within its
possession, custody and control.
13.3 PAYMENT OF EXPENSES.
(a) Any fees assessed by the FCC in connection with the
filings contemplated by SECTION 5.2 or consummation of the transactions
contemplated hereby shall be divided equally between Seller and Buyer. Any fees
associated with the filing of the HSR Filing shall be paid by Buyer.
(b) All state or local sales or use, stamp or transfer, grant
and other similar taxes payable in connection with consummation of the
transactions contemplated hereby shall be paid by the party primarily liable
under applicable law to pay such taxes.
(c) Except as otherwise expressly provided in this Agreement,
each of the parties shall bear its own expenses, including the fees of any
attorneys and accountants engaged by such party, in connection with this
Agreement and the consummation of the transactions contemplated herein.
13.4 SPECIFIC PERFORMANCE. Seller acknowledges that the Station is of
special, unique, and extraordinary character, and that any breach of this
Agreement by Seller could not be compensated for by damages. Accordingly, if
Seller shall breach its obligations under this Agreement, Buyer shall be
entitled to enforcement of this Agreement (subject to obtaining any required
approval of the FCC) by decree of specific performance or injunctive relief
requiring Seller to fulfill its obligations under this Agreement. In any action
by Buyer to equitably enforce the provisions of this Agreement, Seller shall
waive the defense that there is an adequate remedy at law or equity.
13.5 NOTICES. All notices, demands or other communications given
hereunder shall be in writing and shall be sufficiently given if delivered by
courier or sent by registered or certified mail, first class, postage prepaid,
or by telex, cable, telegram, facsimile machine or similar written means of
communication, addressed as follows:
(a) If to Seller, to:
Xxxxxxxx X. Block, Esq.
Vice President and General Counsel
Salem Communications Corporation
0000 Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
(b) If to Buyer, to:
29
Xxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Emmis Communications Corporation
Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
With a copy to:
J. Xxxxx Xxxxxxx
Vice President and Associate General Counsel
Emmis Communications Corporation
Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
or such other address with respect to any party hereto as such party may from
time to time notify (as provided above) to the other party hereto. Any such
notice, demand or communication shall be deemed to have been given (i) if so
mailed, as of the close of the third (3rd) Business Day following the date
mailed, and (ii) if personally delivered or otherwise sent as provided above, on
the date received.
13.6 ENTIRE AGREEMENT. This Agreement, the Schedules and Exhibits
hereto, and the other Documents constitute the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede any prior negotiations, agreements, understandings or
arrangements between the parties with respect to the subject matter hereof.
13.7 BINDING EFFECT; BENEFITS. Except as otherwise provided herein,
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors or assigns. Except to the extent
specified herein, nothing in this Agreement, express or implied, shall confer on
any person other than the parties hereto and their respective successors or
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
13.8 ASSIGNMENT. This Agreement and any rights hereunder shall not be
assignable by either party hereto without the prior written consent of the other
party; provided, however, that either party may assign this Agreement to one or
more direct or indirect wholly-owned subsidiaries so long as (i) such 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. Further, Buyer
may collaterally assign its rights under this Agreement to representatives of
lenders under Buyer's Senior Credit Facility. 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.
30
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.
13.9 GOVERNING LAW. This Agreement shall in all respects be governed
by and construed in accordance with the laws of the State of Colorado, including
all matters of construction, validity and performance.
13.10 BULK SALES. Buyer hereby waives compliance by Seller with the
provisions of the Bulk Sales Act and similar laws of any state or jurisdiction,
if applicable. Seller shall, in accordance with ARTICLE IX, indemnify and hold
Buyer harmless from and against any and all claims made against Buyer by reason
of such non-compliance.
13.11 AMENDMENTS AND WAIVERS. No term or provision of this Agreement
may be amended, waived, discharged or terminated orally but only by an
instrument in writing signed by the party against whom the enforcement of such
amendment, waiver, discharge or termination is sought. Any waiver shall be
effective only in accordance with its express terms and conditions.
13.12 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person or entity or any circumstance, is invalid or
unenforceable in any jurisdiction, (i) a suitable and equitable provision shall
be substituted therefor in order to carry out, so far as may be valid and
enforceable, the extent and purpose of such invalid and unenforceable provision,
and (ii) the remainder of this Agreement and the application of such provision
to other persons, entities or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
13.13 HEADINGS. Except as provided in ARTICLE I, the captions in this
Agreement are for convenience of reference only and shall not define or limit
any of the terms or provisions hereof.
13.14 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and by either party on separate counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
13.15 REFERENCES. All references in this Agreement to Articles,
Sections, and Subsections are to Articles, Sections, and Subsections contained
in this Agreement unless a different document is expressly specified.
13.16 SCHEDULES AND EXHIBITS. Unless otherwise specified herein, each
Schedule and Exhibit referred to in this Agreement is attached hereto, and each
such
31
Schedule and Exhibit is hereby incorporated by reference and made a part hereof
as if fully set forth herein.
{SIGNATURES ON FOLLOWING PAGE.}
32
IN WITNESS WHEREOF, the parties have duly executed this Asset Purchase
Agreement as of the date first written above.
"SELLER" "BUYER "
SALEM COMMUNICATIONS EMMIS COMMUNICATIONS
ACQUISITION CORPORATION CORPORATION
By: By:
------------------------------ ------------------------------
Name: Name:
Title: Title:
33
LIST OF SCHEDULES AND EXHIBITS
SCHEDULE 3.5 Tangible Personal Property
SCHEDULE 3.6 Description of Real Property
SCHEDULE 3.7 FCC Licenses
SCHEDULE 3.8 Station Agreements
SCHEDULE 3.12 Intangible Property
34
SCHEDULE 3.6
TANGIBLE PERSONAL PROPERTY
The Station Assets include all equipment and other tangible personal
property that is owned by Seller (or in which seller holds an interest) and used
primarily in the operation of the Station (and that is not used to operate any
other radio station owned by Seller), whether or not identified on the attached
list, except for Excluded Assets. The attached list identifies items of tangible
personal property used in the operation of the Station but may also include
items that are Excluded Assets or assets which are not owned by Seller because
the same were not transferred to Seller in its acquisition of the Station. The
Station Assets do not include any Excluded Assets, whether or not identified on
the attached list.
35
ASSETS SHARED WITH KXPK
EQUIPMENT RACKS
LIMITERS/PROCESSING
T.C. Electronic finalizer
Xxxxx 424a
urei 1178
Valley 401 (2)
Symetrix 528 (4)
BBE 822a
BBE 862
Aphex Compellor (2)
Xxxxx 8200
Xxxxx 8100 XT/2
Paragon audio processor
Symetrix 528E (3)
Xxxxxx EQ2015 (2)
TELCO INTERFACE
Telos 100 (4)
Telos direct interface (2)
Telos Zephyr (3)
AUDIO ROUTING/DISTRIBUTION
SAS Router
ATI 4x4 DA's (3)
Audiometrics DA84 (2)
Audiometrics DA-16000 (2)
Excalibur CDA-1 composite distribution amp
TRANSMISSION EQUIPMENT
Xxxxxxx 606
Xxxxxxx 6010
Xxxxxxx TPT2
QEI cat link (2)
Modulation Sciences Composite line driver
MONITORING EQUIPMENT
QEI 691 Modulation monitor
Crown D-75 Amplifier
JBL 6215 Amplifier
ENGINEERING SHOP
Audio Test Set - Audio Precision
Oscilloscope - Tektronix 20 MHz
Frequency Counter - Sencore
Isolation Transformer - Sencore
36
Function Generator - Kenwood
"Z" Meter - Sencore
RPU Receiver - Xxxxx XX-10
Amplifier - Hafler
CD Players - Denon 951FA (2)
Xxxxx 8100 (2)
Audio Prism - Texar
Tascam Cassette - 122MKIII
Yamaha SPX90
SPL Vitalizer
Audio Mixer - EV ELXlA
Aphex Aural Exciter
Xxxx Xxxxxx Composite Processor
Eventide MONO delay BD931
Microphone Processor - Aphex Tubessence
Excalibur CDA1
Xxxxx 222A Telos 1A2 Interface (2)
Telos 100 Telephone units (2)
Denon 650F
KITCHEN AREA
Table, kitchen, seats 8
Chairs, metal and fabric (6)
LARGE CONFERENCE ROOM
Table, Wood, 2 sections, seats over 12
Chairs, metal and fabric (18)
Credenza, wood
SMALL CONFERENCE ROOM
Table, Wood, seats 12
Chairs, fabric, (12)
Television, Sony Trinitron, 19"
Stereo, compact tabletop
Table, Wood, sma11
RECEPTION AREA
Table, wood, square
Chairs, vinyl (4)
Computer, Capitol Info Systems, P166
RECEPTION KITCHEN
Refrigerator, free standing
Microwave, countertop
37
OFFICES
X. XXXXX
Desk w/return, wood, overhead cabinets
Storage cabinet, wood and fabric, floor standing
Chair, exec, fabric
Chair, guest, metal and fabric
File cabinet, legal, 2 drawer
Computer system, P366 Celeron
ADMIN ASST.
Desk, corner, wood
Storage cabinet, wood and fabric, floor standing
Computer, P366 Celeron
File, cabinet, legal, 2 drawer
SALES AREA
Workstations:
Metal and fabric, desktop, overhead 3 door storage (12)
Computers - P366 Celeron
Chairs - Metal and Fabric
NEW SALES AREA
Computers P366 Celeron
Printer HP LaserJet 4000TN
EXECUTIVE ASSISTANT
Desk w/return, wood, 5 drawers
File cabinets, legal, 4 drawer, top bin, metal (3)
Desk w/return, wood, 5 drawers
File cabinet, wood, legal, 2 drawers
Computer, P200
TRAFFIC OFFICE
Computer, IBM, AS400
Workstation, IBM, 3180
Computer, Emulated Workstation (3)
Desk w/return, wood, 5 drawers (2)
Desk, custom, vinyl surface
File cabinets, metal, 7 drawer (2)
File cabinet, metal, 6 drawer, 2 bin
File cabinets, metal, 4 drawer, 2 bin (2)
File cabinet, metal, legal, metal, 2 drawers
Printer, IBM 4234 (2)
38
TRAFFIC 2
Desk w/return, wood, overhead cabinets, 5 doors
File cabinet, metal, standard, 3 drawer
File cabinet, metal, legal, 2 drawer
Printer, HP, Laserjet III
EXECUTIVE OFFICE
Workstation, Winsted, metal frame, vinyl surfaces
Chair, metal/fabric
Computer, P366 Celeron
File cabinet, standard, 2 drawer.
RF Test set, IFR COM120B
Loudspeakers, Mackie HR824 (2)
Desk, wood w/return and rear cabinets
Computer docking station (w/ monitor)
Chair, Exec, Leather and metal
Chairs, guest, metal and fabric (2)
Table, conference, round, wood
Chairs, conference, vinyl and fabric (5)
Cabinets, wood, open, 2 level
Television, Sony, 17", w/ VCR
OFFICE, CONTROLLER
Desk, wood, w/return
Computer, P366 Celeron
Printer, HP, Laserjet 4
Chair, Metal and fabric
Chairs, Guest, fabric (2)
PROMOTION OFFICE
Desk, wood, old
Desk, wood, old
Desk, wood, w/return
Desk, wood, w/return
File cabinet, metal, legal, 4 drawer, 1 bin (2)
Computer, MAC, w/ printer
Computer, PC, Compaq CDS972
Computer, PC, Generic
File cabinet, metal, legal, 4 drawer, 1 bin
Chairs, various, old (5)
MUSIC LIBRARY
Desk, wood, small
File cabinet, metal, legal, 2 drawer
39
Computer, PC, generic
BACK HALL
File cabinets, metal, legal, 2 drawer
VEHICLES
KALC/KXPK Chief Engineer - 1995 Range Rover
ROOFTOP EQUIPMENT - XXXXX CENTER
Antenna, Receiving, UHF (1)
ASSETS SHARED WITH KXPK-FM/KVOD-AM/KIMN-FM/KDJM-FM/KXKL-FM
MIS OFFICE
Rack Case - Network Patch Panels - 24 (3)
Hub - CentreCom FH82FV - 24
Rack, Floor, 5'
Network Patch Panel - 24 (2)
Network Switch, Cisco Catalyst 2900/ 24 port
Switch, Nortel Networks, Baystack 350-24T
KVM Switcher, 8 port, Belkin Omniview
Computer, Server, Custom P2/400
Computer, Server, Gateway P2/400
Computer, Web Server, Custom P3/450
Computer, Laptop, Toshiba Satellite 4030CDT
MULTIMEDIA OFFICE
Desk, vinyl veneer
Computers, PII/PIII class (6)
Monitors, 17" (2)
Monitors, 19" (2)
Scanner, HP Scanjet 2CX
QMS color Laser Printer
Canon Digital Video camera
Printer, HP Laserjet
Projector, INFOCUS
Computers, Laptops, Toshiba (3)
Chairs, Metal and vinyl (2)
Chairs, Fabric (2)
Network HUB, Cisco, 20 port
VEHICLES
Director of Engineering - 1999 Ford Explorer (shared with a116 Denver stations)
40
KALC ASSETS
XXXX & BO OFFICE
Shure sm-5b
KALC AIR STUDIO
Microphones
Shure SM-5B (3)
Console:
Auditronics 800-24
Hard Disk Automation
Xxxxx Studios XX
Xxxxx Studios PB
360 Systems Instant Replay
VoxPro Telephone Editor
Tascam 112B Cassette
TFT 911 EAS System Unit
Amplifier, Hafler Model P1500
Distribution Amplifier, ATI DA416
Xxxx Transmitter Remote Control ARC16
CD Players - Audiometrics CD (3)
Sony DAT Machine PCM-2300
Cartridge Players - ITC Delta (3)
Loudspeakers - JBL 4411 (2)
KALC SIDE STUDIO
Desk, wood, small (2)
Chairs, metal and fabric, various (3)
Computer, Capitol Info. Systems P166
Desk, small, formica top
File cabinet, metal, legal, 3 drawer
File cabinet, metal, standard, 4 drawer
BO'S STUDIO
Console- Auditronics Air Master
Sony MDS MS510 MiniDisks (2)
Denon CD 951 (2)
Denon CD 950 (1)
Headphone Amplifier - Xxxx
Xxxxx Studios - PB Workstation
Voxpro Telephone Editor
Tascam DA-70 DAT
Digidesign 882 I/O unit
41
Telos 1X6 Telco Interface
Mic. Processor Symetrix 528E
Pro Tools System (NT)
Microphones Shure SMSB (2)
Loudspeakers JBL 4301 (2)
XXXXX PRODUCTION STUDIO
DAT - Panasonic SV3800
Cart Recorder - ITC 99
Keyboard - Ensoniq Performance Sampler
Reel Machine - Xxxxx XX0000
Typewriter IBM Wheelwriter 3
Reel Machine - Otari MTR10/2
Microphone Preamp - Aphex 107 Tubessence
Compressor/Limiter - Symetrix 525
Equalizer - UREI 535
Noise Reduction - Symetrix 511A
Sonic Maximizer - BBE 862
Microphone Processor - Valley 400
Microphone Processor - Valley 401
Cassette - Tascam 122MKIII
DAT - SONY - PCMR500
Cart Recorder - ITC 99
Harmonizer - Eventide H3000B
Mini-Disk Xxxxxx XX000
CD Player - Denon DN961FA
Console - Auditronics Series 850 24 ch.
Loudspeakers - JBL 4408 (2)
Digital Workstation - Xxxxx Audicy
Xxxxx Studios - PB Workstation
Desk - Wood - L shape
File Cabinet - Legal - 2 drawer (3)
Production Library CDS - various
Amplifier - Mackie M1400
OFFICES
X. XXXXX
Desk w/ return, wood, overhead cabinets
Storage cabinet, wood and fabric, floor standing
Computer, P366 Celeron
Table, round, vinyl, veneer
Chair, exec, fabric
Chairs, metal, leather (2)
EOZ's
42
Desk, wood, w/return
File cabinet, metal, legal, 2 drawer
Computer, PC, P366 Celeron
Chairs, Metal and fabric, (3)
XXX XXXXXX OFFICE
Desk, wood, w/return
Chair, metal and fabric
CD player, Denon DN950FA
Chairs, guest, metal and fabric (2)
XXX XXXXX OFFICE
Desk, wood, w/return
Chair, metal and fabric
File cabinet, metal, legal, 2 drawer
Computer, P366 Celeron
Printer, HP 4L
File cabinet, metal, legal, 4 drawer
Stereo, compact, Technics
Chairs, guest, metal and fabric (2)
KALC TRANSMITTER SITE - LOOKOUT MTN.
Transmitter, main, Continental Electronics 816R-5B 35 kw
Transmitter, aux, CCA, 20kw
Generator, Onan, 100kw w/ 130 gal. base tank
Transfer switch, AC, ASCO
Electrical switch, fuse and disconnect equipment
Transtector Systems ACP3000 branch service protector
Remote Control system, Xxxx XXX 00
XXX receiver, Xxxxxxx PCL 6030
STL receiver, Xxxxxxx PCL 000
Xxxxxxx, XX, XXX 695
Exciter, FM, Continental 802
Exciter, BE, FX30
Prism, Texar
Stereo Generator, Inovonics
Coaxial Switch and hardware
RF Termination Unit, Electro Impulse DPTC-25KFM
Exhaust Fan, Wall mounted, 12"
Dehydrator, Xxxxxx XT-300 and monitor
UPS, Sola
Antenna, Jampro 5 element directional
Transmission Line, approx. 335', 3 1/8"
RF Amplifier, 500 watt, 2nd auxiliary
43
Antenna, STL, Scala
Rack, equipment, metal, 7'
Rack,equipment, metal, 6'
VEHICLES - PROMOTIONAL - KALC
Promotion jeep
Ambulance remote vehicle
REMOTE BROADCAST EQUIPMENT - KALC
(all equipment in vehicle or road case)
Transmitter, RPU, Xxxxx, RPT-30
Transmitter, RPU, Xxxxx, RPT-2
Receiver, RPU, AR-10
Power Amplifier, RPU, 500 watt
Mixer, Xxxxx Xxxxx, 24X4
Mast, Xxx-xxxx, 30'
Audio system - JBL
Microphones, wireless (5)
Audio system - Carvin
ROOFTOP EQUIPMENT - XXXXX CENTER
Receiver, RPU, Xxxxx, Frequency Agile
Xxxxxxx, XXX, Xxxx, 0'
XX LIB:190690.5
44
SCHEDULE 3.6
REAL PROPERTY
*1. Lease and License Agreement dated February 27, 1998 between KWG
Inc. and Shamrock Broadcasting; Term: 3/1/1997-10/31/2004 (Transmitter and Tower
Lease).
*2. The right to "holdover" with respect to two (2) Xxxxx Center
Leases, as amended pursuant to a First Amendment dated January 28, 1999, between
The Xxxxx Group and Great American Television and Radio; Term:
9/12/1991-12/31/2000 and 11/1/94 -12/31/2000 (Studio Lease).
*3. The right to "holdover" with respect to a Storage Space Lease
dated March 5, 1991 between The Xxxxx Group and Great American Television and
Radio; Term: perpetual.
[*] Contract requires third party consent to assignment.
45
SCHEDULE 3.7
FCC LICENSES
CALL SIGN FREQUENCY FILE NO. EXPIRATION
KALC 105.9 MHZ BRH-961129N5 4/1/2005
WCD-984 Aural STL 4/1/2005
46
SCHEDULE 3.8
STATION AGREEMENTS
The Station Agreements include all agreements to which Seller is a
party (or in which Seller has an interest) and which relate to the operation of
the Station (and that are not used to operate any other radio station owned by
Seller), except Excluded Assets. The attached list identifies contracts used in
the operation of the Station, but may also include items that are Excluded
Assets or agreements to which Seller is not a party or has no right, title or
interest in.
Contracts marked below with an asterisk require third party notice or
consent to be assigned.
l. All agreements for the sale of time on the Station.
2. All Trade Agreements.
3. The interest and obligations (if any) described on SCHEDULE 3.6.
4. Any other contracts, agreements or leases designated by Seller
and made in the ordinary course of business that are used in the
operation of any Station.
5. Arbitron and National Representation Agreement .
6. The following:
KALC-FM
1. Representation Agreement dated February 1, 1996 between Xxxxxxxx
Radio Sales and Chancellor Broadcasting
2. Local Station Blanket Radio License dated May 5, 1997 between
ASCAP and Shamrock Broadcasting.
3. License Agreement dated May 19, 1998 between Xxxxx Bag
Productions and Chancellor (Rampage Music Library).
4. Subcarrier Ageement dated April 1, 1998 between Command Audio
Corporation and Chancellor (revenue producing).
* 5. Standard License Agreement dated December 9, 1998 between Radio
Computing Services and Chancellor.
47
6. Jingle License Agreement dated March 12, 1998 between TM Century
and Chancellor Media (Jingle Package).
7. Jingle License Agreement dated August 31, 1998 between TM
Century and Chancellor Media (Morning Jingles).
KXPK-FM/KALC-FM/KVOD-AM/KIMIV-FM/KDJM-FM/KXKL-PM
1. MS Voter ID Contract Database Agreement dated July 26, 1999
between Media Strategies and AMFM
* 2. Penthouse Suite License Agreement dated September 30, 1999
between Stadium Management Co. and Chancellor Media
(non-assignability clause).
* 3. License Agreement for an Executive Suite dated September 14,
1999 between Stadium Management Co., and Chancellor Media
(non-assignability clause).
* 4. License Agreement dated December 2, 1999 between Columbine JDS
and AMFM.
* 5. License Agreement dated November 26, 1997 between Ascent Arena
and Chancellor (Pepsi-Center Suite).
6. Lease Agreement dated March 30, 1999 between Minolta and
Chancellor (Agreement entered into with Chancellor Marketing
Group being shared between all stations as "cluster" people
are using).
7. Lease Agreement dated April 19, 1999 between Peak Office
Furniture and Chancellor (Agreement entered into with
Chancellor Marketing Group being shared between all stations
as "cluster" people are using).
KALC-FM/KIMN-FM
* 1. Lease Agreement dated March 19, 1998 between Pitney Xxxxx and
KALC and KIMN.
* 2. License Agreement to Receive and Use Scarborough Reports dated
June 11, 1997 between Arbitron and KIMN-FM/KALC-FM.
KXPK-FM/KALC-FM/KVOD-AM/KIMN-FM/KRRF-AM/KXKL-FM
48
l. Agreement dated October 9, 1998 between Presslaff Interactive
Revenue and KXPK-FM/KALC-FM/KVOD-AM/KIMN-FM/KRRF-AM/KXKL-FM (Phone Voice React
System).
KALC-FM/KIMN-FM/KXKL-FM
* 1. Software License Agreement and Service Master Agreement dated
March 13, 1999 between TAPSCAN and KIMN/KALC/KXKL.
KALC-FM/KXP K-FM
1. Cost-Per-Copy Agreement dated September 1, 1998 between Copy
Vend and Chancellor.
2. Agreement dated April 8, 1999 between Urban Forest Plantscaping
and KALC.
49
EMPLOYMENT AGREEMENTS
KXKL/KD JM/KXPK/KVOD/KALC/KIMN
1. Employment Agreement between Xxxxxx Xxxxxxxx and Chancellor
(Director of Business Development).
KALC/KXPK
l. Employment Agreement dated November 10, 1999 between Xxxx
Xxxxx and KALC/KXPK (Director of Market Development).
KALC/KXPK/XXXX
x. Employment Agreement dated October 1999 between Xxxxx Xxxxxxx
and KALC/KXPK/KIMN (National Sales Manager).
KALC-FM
1. Employment Agreement dated January 7, 1999 between Xxxxx Xxxxxx
and Chancellor (Program Director).
2. Employment Agreement dated April 29, 1999 between Xxxxx Xxxxx
and Chancellor (Assistant Program Director/Music Director).
3. Employment Agreement dated August 9, 1999 between Xxx Xxxxxx an
Chancellor (Night Air Personality)
4. Employment Agreement dated September 9, 1999 between Xxxxxxx
XxXxxx and AMFM; Term: 9/9/1999-12/31/2002 (Afternoon Drive
Personality)
5. Employment Agreement dated September 9, 1999 between Xxxx Xxxxx
and AMFM; Term: 9/9/1999-12/31/2002 (Afternoon Drive
Personality)
50
MISCELLANEOUS EMPLOYMENT AGREEMENTS
EMPLOYEE NAME POSITION
Xxxxxxx Xxxxxxxx KALC AM Producer
Xxxxxx Xxxxxxx Database Marketing Supervisor
Xxxxxx Xxxxxx KALC Promotions Assistant
Xxxxxxx Xxxxxx Production Director
Xxxx Xxxx KALC Part Time Air Staff
XxXxxx Xxxxxxx ALC Afternoon Drive
Xxxxx Xxxxx KALC Part Time Air Staff
Xxxxxxx Xxxxx Account Executive
Xxxxx Xxxxx Account Executive
Xxxxx Xxxxx GMS
Xxxxxx Xxxxxxxxx KALC Part Time Air Staff
Xxxxxx Xxx Receptionist
Xxxxx Xxx KALC Promotions Assistant
Xxxxxx Xxxxxxxxxxx KALC Part Time Air Staff
Xxxxx Xxxxx KALC Music Director
Xxxxx -Xxxx Xxxxxx KALC Overnight
Xxxxxx Xxx KALC Program Director
Xxxxxxx Xxxxx KALC/KXPK Engineer
Xxxxx Xxxxx KALC Sales Asst
Xxx Xxxxxxx Afternoon Producer
Xxxxx Xxxxxxxxx Account Executive
Xxxxxx Xxxx KALC Afternoon Drive
XxXxxx Xxxxx A/R Clerk
Xxxxx Xxxxx KALC Traffic Director
Xxxxxxx Xxxxxxx Account Executive
Xxxxx Xxxx NTR Sales
Xxxxx Xxxxxx Executive Assistant (KXPK/KALC)
Xxxxx Xxxxx Revenue Manager
Xxxxx Xxxxx KALC Mid Days
Xxxxxxxx Xxx Account Executive
Xxxxxxxx Xxxx Account Executive
Xxxxxx Xxxx Continuity (KXPK/KALC)
Xxxxxx Xxxx KALC Part Time Air Staff
Xxxxx Xxxx Account Executive
Xxxxxx Xxxxx MIS Assistant
Xxxxxxx Xxxxx KALC Part Time Air Staff
Xxxxx Xxx KALC Promotions Director
Xxxxxxx Xxxxx National Sales Manager
51
SCHEDULE 3.12
INTANGIBLE PERSONAL PROPERTY
All of Seller's rights in and to the Station's call letters and Seller's rights
in and to the trademarks, trade names, service marks, franchises, copyrights,
computer software, programs, websites, domain names, and programming material,
jingles, slogans, logos, and other intangible property, and goodwill related
thereto, which are used primarily in the operation of the Station (and that is
not used to operate any other radio station owned by Seller), including but not
limited to:
License for the following marks:
XXXX COLORADO REGISTRATION NUMBER EXPIRATION
l. KALC Unregistered
2. XXXXX 2145746 3/24/2004
3. "Five Thousand Dollar Thursdays" 19991224371 12/01/2009
4. "Shortcuts to Y-2 Cash" 19991224372 12/01/2009
5. "Last Millennium Lunch" 19991224373 12/01/2009
REGISTERED INTERNET DOMAIN NAMES
xxxxx000.xx
xxxx.xx
000.xx
xxxxxxxxxxxxx.xx
Xxxxxxxxx.xx
xxxxx000.xxx
52
EXHIBIT "A"
ESCROW AGREEMENT
53
