E X C H A N G E A G R E E M E N T
BETWEEN
CHANCELLOR RADIO BROADCASTING COMPANY
WEAT-AM/FM, XXXX XXXX XXXXX, XXXXXXX
XXXX-XX, XXXXXXX XXXXX, XXXXXXX
AND
AMERICAN RADIO SYSTEMS CORPORATION
KSTE-AM, RANCHO CORDOVA, CALIFORNIA
EXCHANGE AGREEMENT
TABLE OF CONTENTS
Section 1. Asset Purchase Agreements . . . . . . . . . . . . . . . . . . .-1-
1.1 CALIFORNIA AGREEMENT. . . . . . . . . . . . . . . . . . . . . .-1-
1.2 FLORIDA AGREEMENT.. . . . . . . . . . . . . . . . . . . . . . .-2-
Section 2. Exchange of Assets. . . . . . . . . . . . . . . . . . . . . . .-2-
2.1 TAX FREE EXCHANGE.. . . . . . . . . . . . . . . . . . . . . . .-2-
2.2 TRANSFER OF ASSETS TO ARS.. . . . . . . . . . . . . . . . . . .-2-
2.2.1 FCC LICENSES . . . . . . . . . . . . . . . . . . . . . .-2-
2.2.2 OTHER GOVERNMENTAL AUTHORIZATIONS. . . . . . . . . . . .-2-
2.2.3 TANGIBLE PERSONAL PROPERTY . . . . . . . . . . . . . . .-2-
2.2.4 CONTRACTS. . . . . . . . . . . . . . . . . . . . . . . .-3-
2.2.5 INTELLECTUAL PROPERTY. . . . . . . . . . . . . . . . . .-3-
2.2.6 STATION RECORDS. . . . . . . . . . . . . . . . . . . . .-3-
2.2.7 MANUFACTURER/VENDOR WARRANTIES . . . . . . . . . . . . .-3-
2.2.8 REAL ESTATE. . . . . . . . . . . . . . . . . . . . . . .-3-
2.2.9 ALL OTHER FLORIDA STATION ASSETS . . . . . . . . . . . .-3-
2.3 EXCLUDED FLORIDA ASSETS.. . . . . . . . . . . . . . . . . . . .-4-
2.3.1 CASH . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
2.3.2 RECEIVABLES. . . . . . . . . . . . . . . . . . . . . . .-4-
2.3.3 CONSUMED PROPERTY. . . . . . . . . . . . . . . . . . . .-4-
2.3.4 TERMINATED CONTRACTS . . . . . . . . . . . . . . . . . .-4-
2.3.5 CORPORATE RECORDS. . . . . . . . . . . . . . . . . . . .-4-
2.3.6 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . .-4-
2.3.7 EMPLOYEE PLANS . . . . . . . . . . . . . . . . . . . . .-4-
2.3.8 CORPORATE NAME . . . . . . . . . . . . . . . . . . . . .-4-
2.3.9 EXCLUDED ASSETS . . . . . . . . . . . . . . . . . . . .-4-
2.3.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
2.3.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . .-4-
2.3.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . .-5-
2.4 TRANSFER OF ASSETS TO CHANCELLOR. . . . . . . . . . . . . . . .-5-
2.4.1 FCC LICENSES . . . . . . . . . . . . . . . . . . . . . .-5-
2.4.2 OTHER GOVERNMENTAL AUTHORIZATIONS. . . . . . . . . . . .-5-
2.4.3 TANGIBLE PERSONAL PROPERTY . . . . . . . . . . . . . . .-5-
2.4.4 CONTRACTS. . . . . . . . . . . . . . . . . . . . . . . .-5-
2.4.5 INTELLECTUAL PROPERTY. . . . . . . . . . . . . . . . . .-5-
2.4.6 STATION RECORDS. . . . . . . . . . . . . . . . . . . . .-5-
2.4.7 MANUFACTURER/VENDOR WARRANTIES . . . . . . . . . . . . .-6-
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2.4.8 REAL ESTATE. . . . . . . . . . . . . . . . . . . . . . .-6-
2.4.9 ALL OTHER CALIFORNIA STATION ASSETS. . . . . . . . . . .-6-
2.5 EXCLUDED CALIFORNIA ASSETS. . . . . . . . . . . . . . . . . . .-6-
2.5.1 CASH . . . . . . . . . . . . . . . . . . . . . . . . . .-6-
2.5.2 RECEIVABLES. . . . . . . . . . . . . . . . . . . . . . .-6-
2.5.3 CONSUMED PROPERTY. . . . . . . . . . . . . . . . . . . .-6-
2.5.4 TERMINATED CONTRACTS . . . . . . . . . . . . . . . . . .-6-
2.5.5 CORPORATE RECORDS. . . . . . . . . . . . . . . . . . . .-6-
2.5.6 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . .-7-
2.5.7 EMPLOYEE PLANS . . . . . . . . . . . . . . . . . . . . .-7-
2.5.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
2.5.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
2.5.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
2.5.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
2.5.12. . . . . . . . . . . . . . . . . . . . . . . . . . . . .-7-
2.6 PERMITTED LIENS.. . . . . . . . . . . . . . . . . . . . . . . .-7-
2.6.1 FLORIDA STATIONS . . . . . . . . . . . . . . . . . . . .-7-
2.6.2 CALIFORNIA STATION . . . . . . . . . . . . . . . . . . .-7-
Section 3. CONSIDERATION.. . . . . . . . . . . . . . . . . . . . . . . . .-7-
3.1 CONSIDERATION FROM CHANCELLOR.. . . . . . . . . . . . . . . . .-7-
3.1.1 FLORIDA AGREEMENT. . . . . . . . . . . . . . . . . . . .-7-
3.1.2 FLORIDA AGREEMENT FAILS TO CLOSE . . . . . . . . . . . .-8-
3.2 CONSIDERATION FROM ARS. . . . . . . . . . . . . . . . . . . . .-8-
3.3 ADJUSTMENTS TO CASH PAYMENTS. . . . . . . . . . . . . . . . . .-8-
3.3.1 ADJUSTMENTS FOR CALIFORNIA STATION OPERATIONS. . . . . .-8-
3.3.2 ADJUSTMENTS FOR FLORIDA STATION OPERATIONS.. . . . . . .-8-
3.3.3 DEFINITION OF BUYER AND SELLER.. . . . . . . . . . . . .-8-
3.3.4 ITEMS SUBJECT TO ADJUSTMENT. . . . . . . . . . . . . . .-9-
3.3.5 AD VALOREM OF REAL ESTATE TAXES. . . . . . . . . . . . .-9-
3.3.6 DISPUTE PROCEDURE FOR ALLOCATIONS. . . . . . . . . . . .-9-
3.4 ALLOCATION OF CONSIDERATION. . . . . . . . . . . . . . . . . -10-
3.4.1 CALIFORNIA STATION'S BARTER AND TRADE. . . . . . . . . -10-
3.4.2 FLORIDA STATIONS' BARTER AND TRADE.. . . . . . . . . . -10-
Section 4. Assumption of Obligations . . . . . . . . . . . . . . . . . . -10-
4.1 CALIFORNIA ASSUMED LIABILITIES. . . . . . . . . . . . . . . . -10-
4.2 CALIFORNIA RETAINED LIABILITIES. . . . . . . . . . . . . . . -10-
4.3 FLORIDA ASSUMED LIABILITIES.. . . . . . . . . . . . . . . . . -11-
4.4 FLORIDA RETAINED LIABILITIES. . . . . . . . . . . . . . . . . -11-
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Section 5. Escrow Deposits . . . . . . . . . . . . . . . . . . . . . . . -11-
5.1 CALIFORNIA ESCROW.. . . . . . . . . . . . . . . . . . . . . . -11-
5.2 FLORIDA ESCROW. . . . . . . . . . . . . . . . . . . . . . . . -11-
Section 6. Government Consents . . . . . . . . . . . . . . . . . . . . . -12-
6.1 FCC CONSENT.. . . . . . . . . . . . . . . . . . . . . . . . . -12-
6.2 FCC APPLICATIONS. . . . . . . . . . . . . . . . . . . . . . . -12-
6.3 FILINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
Section 7. Local Marketing Agreements. . . . . . . . . . . . . . . . . . -12-
7.1 CALIFORNIA LOCAL MARKETING AGREEMENT. . . . . . . . . . . . . -12-
7.2 FLORIDA LOCAL MARKETING AGREEMENT.. . . . . . . . . . . . . . -13-
Section 8. Collection of Accounts Receivable . . . . . . . . . . . . . . -13-
8.1 CALIFORNIA ACCOUNTS RECEIVABLE. . . . . . . . . . . . . . . . -13-
8.2 FLORIDA ACCOUNTS RECEIVABLE.. . . . . . . . . . . . . . . . . -14-
Section 9. Third Party Consents. . . . . . . . . . . . . . . . . . . . . -15-
9.1 CALIFORNIA CONSENTS.. . . . . . . . . . . . . . . . . . . . . -15-
9.2 FLORIDA CONSENTS. . . . . . . . . . . . . . . . . . . . . . . -15-
9.3 FAILURE TO OBTAIN CONSENTS. . . . . . . . . . . . . . . . . . -15-
Section 10. Representations and Warranties of Chancellor. . . . . . . . . -15-
10.1 ORGANIZATION AND STANDING.. . . . . . . . . . . . . . . . . . -15-
10.2 AUTHORIZATION AND BINDING OBLIGATION. . . . . . . . . . . . . -16-
10.3 QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . -16-
10.4 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. . . . -16-
10.5 LITIGATION: COMPLIANCE WITH LAW. . . . . . . . . . . . . . . -16-
10.6 BROKER/FINDER FEES. . . . . . . . . . . . . . . . . . . . . . -16-
10.7 REPRESENTATIONS AND WARRANTIES AS TO THE FLORIDA STATIONS.. . -17-
Section 11. Representation and Warranties of ARS. . . . . . . . . . . . . -17-
11.1 ORGANIZATION AND STANDING . . . . . . . . . . . . . . . . . . -17-
11.2 AUTHORIZATION AND BINDING OBLIGATION. . . . . . . . . . . . . -17-
11.3 QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . -17-
11.4 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS. . . . -17-
11.5 LITIGATION: COMPLIANCE WITH LAW. . . . . . . . . . . . . . . -17-
11.6 BROKER/FINDER FEES. . . . . . . . . . . . . . . . . . . . . . -18-
11.7 REPRESENTATIONS AND WARRANTIES AS TO THE CALIFORNIA STATION.. -18-
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Section 12. Covenants of Chancellor . . . . . . . . . . . . . . . . . . . -18-
12.1 CONDUCT OF STATION: . . . . . . . . . . . . . . . . . . . . . -18-
12.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
12.3 NO INCONSISTENT ACTION. . . . . . . . . . . . . . . . . . . . -20-
12.4 UPDATING OF SCHEDULES . . . . . . . . . . . . . . . . . . . . -20-
12.5 ENFORCEMENT OF AGREEMENTS . . . . . . . . . . . . . . . . . . -20-
12.6 FCC REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . -20-
12.7 NOTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . -21-
12.8 POST-CLOSING ACCESS . . . . . . . . . . . . . . . . . . . . . -21-
12.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
Section 13. Covenants of ARS. . . . . . . . . . . . . . . . . . . . . . . -21-
13.1 CONDUCT OF STATION. . . . . . . . . . . . . . . . . . . . . . -21-
13.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
13.3 NO INCONSISTENT ACTION. . . . . . . . . . . . . . . . . . . . -23-
13.4 UPDATING OF SCHEDULES.. . . . . . . . . . . . . . . . . . . . -23-
13.5 ENFORCEMENT OF AGREEMENTS. . . . . . . . . . . . . . . . . . -23-
13.6 FCC REPORTS.. . . . . . . . . . . . . . . . . . . . . . . . . -24-
13.7 NOTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . -24-
13.8 POST-CLOSING ACCESS.. . . . . . . . . . . . . . . . . . . . . -24-
13.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
Section 14. Joint Covenants . . . . . . . . . . . . . . . . . . . . . . . -24-
14.1 CONFIDENTIALITY.. . . . . . . . . . . . . . . . . . . . . . . -24-
14.2 COOPERATION.. . . . . . . . . . . . . . . . . . . . . . . . . -25-
14.3 CONTROL OF STATIONS.. . . . . . . . . . . . . . . . . . . . . -25-
14.4 BULK SALES LAWS.. . . . . . . . . . . . . . . . . . . . . . . -25-
14.5 PUBLIC ANNOUNCEMENTS. . . . . . . . . . . . . . . . . . . . . -25-
14.6 XXXX-XXXXX-XXXXXX.. . . . . . . . . . . . . . . . . . . . . . -25-
14.7 EMPLOYEE MATTERS. . . . . . . . . . . . . . . . . . . . . . . -26-
Section 15. Conditions of Closing by Chancellor . . . . . . . . . . . . . -26-
15.1 REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . -26-
15.2 COMPLIANCE WITH AGREEMENT.. . . . . . . . . . . . . . . . . . -26-
15.3 THIRD PARTY CONSENTS AND APPROVALS; ESTOPPEL CERTIFICATES . . -26-
15.4 CLOSING CERTIFICATES. . . . . . . . . . . . . . . . . . . . . -26-
15.5 GOVERNMENTAL CONSENTS.. . . . . . . . . . . . . . . . . . . . -26-
15.6 ADVERSE PROCEEDINGS.. . . . . . . . . . . . . . . . . . . . . -27-
15.7 CLOSING DOCUMENTS.. . . . . . . . . . . . . . . . . . . . . . -27-
iv
Section 16. Conditions of Closing by ARS. . . . . . . . . . . . . . . . . -27-
16.1 REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . -27-
16.2 COMPLIANCE WITH AGREEMENT.. . . . . . . . . . . . . . . . . . -27-
16.3 THIRD PARTY CONSENTS AND APPROVALS; ESTOPPEL CERTIFICATES . . -27-
16.4 CLOSING CERTIFICATES. . . . . . . . . . . . . . . . . . . . . -28-
16.5 GOVERNMENTAL APPROVAL.. . . . . . . . . . . . . . . . . . . . -28-
16.6 ADVERSE PROCEEDINGS.. . . . . . . . . . . . . . . . . . . . . -28-
16.7 CLOSING DOCUMENTS.. . . . . . . . . . . . . . . . . . . . . . -28-
Section 17. Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
17.1 TIME AND PLACE. . . . . . . . . . . . . . . . . . . . . . . . -28-
17.2 DELIVERIES BY CHANCELLOR. . . . . . . . . . . . . . . . . . . -28-
17.3 DELIVERY BY ARS.. . . . . . . . . . . . . . . . . . . . . . . -29-
17.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
Section 18. Survival of Representations and Warranties. . . . . . . . . . -30-
18.1 REPRESENTATIONS AND WARRANTIES OF CHANCELLOR. . . . . . . . . -30-
18.2 REPRESENTATIONS AND WARRANTIES OF ARS.. . . . . . . . . . . . -30-
Section 19. Indemnification . . . . . . . . . . . . . . . . . . . . . . . -30-
19.1 INDEMNIFICATION BY CHANCELLOR.. . . . . . . . . . . . . . . . -30-
19.2 INDEMNIFICATION BY ARS. . . . . . . . . . . . . . . . . . . . -30-
19.3 LIMITATION ON REIMBURSEMENT . . . . . . . . . . . . . . . . . -31-
19.4 PROCEDURE FOR INDEMNIFICATION.. . . . . . . . . . . . . . . . -31-
Section 20. Termination . . . . . . . . . . . . . . . . . . . . . . . . . -32-
20.1 RIGHT TO TERMINATE. . . . . . . . . . . . . . . . . . . . . . -32-
20.2 LIQUIDATED DAMAGES/SPECIFIC PERFORMANCE . . . . . . . . . . . -33-
Section 21. Expenses, Transfer Taxes, and Fees. . . . . . . . . . . . . . -34-
21.1 EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
21.2 TRANSFER TAXES AND SIMILAR CHARGES. . . . . . . . . . . . . . -34-
21.3 GOVERNMENTAL FILING OR GRANT FEES.. . . . . . . . . . . . . . -34-
Section 22. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . -34-
22.1 RISK OF LOSS. . . . . . . . . . . . . . . . . . . . . . . . . -34-
22.2 ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . -34-
22.3 AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . -35-
22.4 HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
22.5 GOVERNING LAW.. . . . . . . . . . . . . . . . . . . . . . . . -35-
22.6 NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
22.7 SCHEDULES.. . . . . . . . . . . . . . . . . . . . . . . . . . -36-
22.8 ENTIRE AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . -36-
v
22.9 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . -36-
22.10 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . -36-
22.11 BINDING AGREEMENT . . . . . . . . . . . . . . . . . . . . . . -36-
22.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . -37-
vi
EXCHANGE AGREEMENT
This Exchange Agreement is made effective as of July ___, 1996 by and among
America Radio Systems Corporation, a Delaware corporation ("ARS"), and
Chancellor Radio Broadcasting Company, a Delaware corporation ("Chancellor").
RECITALS
WHEREAS, ARS is a party to a certain Asset Purchase Agreement dated March
26, 1996 between ARS and Xxxxxx-Xxxxxxx Broadcasting Companies, Inc. ("FBC")
pursuant to which ARS has purchased substantially all of FBC's assets used or
useful in the operation of AM broadcast station KSTE, Rancho Cordova, California
(the "California Station"), including the related KSTE broadcast licenses and
authorizations issued by the Federal Communications Commission ("FCC"). That
Asset Purchase Agreement hereafter is referred to as the "California Agreement".
WHEREAS, Chancellor is a party to a certain Asset Purchase Agreement, dated
May 14, 1996 among Chancellor and Chancellor Broadcasting Company and
OmniAmerica Group, WAPE-FM License Partnership, WFYV-FM License Partnership,
WEAT-AM License Partnership, WEAT-FM License Partnership, WXXL License
Partnership, XXXX License Partnership and WJHM-FM License Partnership
(collectively, "Omni") contemplating, INTER ALIA, the purchase by Chancellor of
substantially all of Omni's assets used or useful in the operation of Stations
WEAT AM and FM, West Palm Beach, Florida, and Station XXXX (FM), Riviera Beach,
Florida (collectively, the "Florida Stations"), including the related FCC
broadcast licenses and authorizations. That Asset Purchase Agreement is
hereafter referred to as the "Florida Agreement".
WHEREAS, Chancellor and ARS desire to exchange the assets of the Florida
Stations for the assets of the California Station plus a cash payment by ARS as
provided herein.
WHEREAS, the parties intend the exchange of the Florida Stations and the
California Station to qualify as a tax free exchange of like-kind assets
pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code");
WHEREAS, effective August 1, 1996, (the "LMA Commencement Date"), (i)
Chancellor and ARS shall enter into Local Marketing Agreements ("LMAs") with
respect to the Florida Stations ("Florida Stations LMA"); and (ii) Chancellor
and ARS shall enter into a LMA with respect to the California Station
("California Station LMA").
Now, therefore, in contemplation of the recitals set out above and in
consideration of the mutual covenants and agreements contained herein, the
parties, intending to be contractually bound, agree as follows:
-1-
SECTION 1. ASSET PURCHASE AGREEMENTS
1.1 CALIFORNIA AGREEMENT. ARS has complied in a timely fashion with
all material requirements of the California Agreement and has acquired the
assets of the California Station from FBC in the manner contemplated in the
California Agreement. ARS did not amend in any material respect the California
Agreement or waive any right thereunder and shall not waive any continuing right
thereunder without the prior written consent of Chancellor. This prior written
consent shall not be unreasonably withheld by Chancellor. ARS shall enforce any
and all of its material rights under the California Agreement.
1.2 FLORIDA AGREEMENT. Chancellor shall comply in a timely fashion
with all material requirements of the Florida Agreement and shall use its
reasonable best efforts to acquire the assets of the Florida Stations from Omni
at the earliest practicable time and in the manner contemplated in the Florida
Agreement. Chancellor shall not amend in any material respect the Florida
Agreement or waive any right thereunder without the prior written consent of
ARS. This prior written consent shall not be unreasonably withheld by ARS.
Chancellor shall enforce any and all of its material rights under the Florida
Agreement.
SECTION 2. EXCHANGE OF ASSETS
2.1 TAX FREE EXCHANGE. The parties intend for this transaction to
qualify as a tax-free exchange under Section 1031 of the Code. In order to
attain this goal, the parties will, to the extent possible, exchange (i)
depreciable personal property in the same General Asset Class or Product Class,
as those terms are used in Treas. Regulation 1.1031(a)-2(b); and (ii) non-
depreciable personal property and intangible personal property for other
property of a like kind.
2.2 TRANSFER OF ASSETS TO ARS. Subject to the terms, conditions and
limitations contained herein, on the Closing Date as defined in Section 13.1,
Chancellor shall convey to ARS and ARS shall acquire from Chancellor (to the
extent Chancellor acquires the same from Omni) all of the following assets,
properties, interests and rights (the "Florida Assets") free and clear of liens
and encumbrances except the Florida Permitted Liens allowed under Section 2.6.1:
2.2.1 FCC LICENSES. All licenses, permits, special temporary
authority, program test authority and authorizations of any type whatsoever
issued by the FCC, and any pending applications thereof, and used in connection
with the Florida Stations (the "Florida Licenses"), including those
authorizations for the Florida Stations identified in the pertinent portions of
Schedule 2.1.1 of this Agreement and any renewals or modifications thereof;
2.2.2 OTHER GOVERNMENTAL AUTHORIZATIONS. All licenses,
permits, and other authorizations of any nature whatsoever issued by a
governmental authority and used in the
-2-
operation of the Florida Stations;
2.2.3 TANGIBLE PERSONAL PROPERTY. All equipment, office
furniture and fixtures, office materials and supplies, inventory, spare parts
and all other tangible personal property of every kind and description, and
Chancellor's rights therein, owned, leased or held by Chancellor and used in
connection with the operations of the Florida Stations, including but not
limited to those items described or listed in Schedule 2.2.3, together with any
replacements thereof and additions thereto, made before the Closing Date, and
less any retirements or dispositions thereof made before the Closing Date in the
ordinary course of business;
2.2.4 CONTRACTS. All contracts, agreements, leases and
legally binding contractual rights of any kind, written or oral, relating to the
operation of the Florida Stations ("Florida Contracts"), listed in Schedule
2.2.4 or entered into before the Closing Date in the ordinary course of business
of the Florida Stations;
2.2.5 INTELLECTUAL PROPERTY. All trademarks, trade names,
service marks (including the Call Signs WEAT, WEAT-FM and XXXX), franchises,
copyrights, Internet domain names and addresses, including registrations and
applications for registration of any of them, computer software programs and
programming material of whatever form or nature, jingles, slogans, the Florida
Stations' logos and all other logos or licenses to use same and all other
intangible property rights of Chancellor, which are used exclusively in
connection with the operation of the Florida Stations, including but not limited
to those listed in Schedule 2.2.5 (collectively, the "Florida Intellectual
Property") together with any associated good will and any additions thereto
before the Closing Date;
2.2.6 STATION RECORDS. All of the files, documents, records,
and books of account relating to the operation of the Florida Stations or to the
Florida Assets, including without limitation the Florida Stations' public files,
programming information and studies, technical information and engineering data,
news and advertising studies or consulting reports, marketing studies,
demographic data, sales correspondence, lists of advertisers, promotional
materials, credit and sales reports and filings with the FCC, copies of all
written Contracts to be assigned hereunder, logs, software programs and books
and records relating to employees, financial, accounting and operation matters;
but excluding records relating solely to any Excluded Asset (as hereinafter
defined);
2.2.7 MANUFACTURER/VENDOR WARRANTIES. All manufacturer's and
vendors' warranties relating to items included in the Florida Assets and all
similar rights against third parties relating to items included in the Florida
Assets;
2.2.8 REAL ESTATE. All real property used in operating the
Florida Stations together with all appurtenant easements thereunto and all
structures, fixtures and improvements located thereon as more fully described in
Schedule 2.2.8, together with any additions thereto before the Closing Date
("the Florida Real Estate"); provided however that the
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studios for Station XXXX located on Blue Heron Boulevard in Riviera Beach,
Florida shall not be conveyed to ARS and are excluded from the Florida Real
Estate, as Omni is in the process of donating them to the State of Florida.
2.2.9 ALL OTHER FLORIDA STATION ASSETS. Except for Excluded
Assets, such other assets, properties, interests and rights that are used
exclusively in connection with the operation of the Florida Stations or that are
located as of the Closing Date on the Florida Real Estate.
2.3 EXCLUDED FLORIDA ASSETS. Notwithstanding anything to the
contrary contained herein, it is expressly understood and agreed that the
Florida Assets shall not include the following assets along with all rights,
title and interest therein (the "Excluded Florida Assets"):
2.3.1 CASH. All cash, marketable securities and cash
equivalents of Chancellor on hand and/or in banks;
2.3.2 RECEIVABLES. All cash accounts receivable or notes
receivable of Chancellor;
2.3.3 CONSUMED PROPERTY. All tangible and intangible
personal property related to the Florida Stations disposed of or consumed in the
ordinary course of business of Chancellor or Omni before the Closing Date, or as
permitted hereunder;
2.3.4 TERMINATED CONTRACTS. All non-assumed Contracts or
Contracts that have terminated or expired prior to the Closing Date in the
ordinary course of business of Chancellor or Omni or ARS as permitted hereunder;
2.3.5 CORPORATE RECORDS. Chancellor's corporate seal, minute
books, charter documents, corporate stock record book and such other books and
records as pertain to the organization, existence or share capitalization of
Chancellor and duplicate copies of all books and records transferred to ARS
hereunder as are necessary to enable Chancellor to file its tax returns and
reports, as well as any other contracts, records or materials relating to
Chancellor or its business and not involving or relating to the Florida Assets
or the operation or operations of the Florida Stations;
2.3.6 INSURANCE. Contracts of insurance and all insurance
proceeds or claims made by Chancellor;
2.3.7 EMPLOYEE PLANS. All pension, profit sharing or cash or
deferred (Section 401(k)) plans and trusts and the assets thereof and any other
employee benefit plan or arrangement and the assets thereof, if any, maintained
by Chancellor;
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2.3.8 CORPORATE NAME. Any right to use the names
"Chancellor," "Chancellor Broadcasting Company," or "Chancellor Radio
Broadcasting Company" and any variations thereof;
2.3.9 EXCLUDED ASSETS. Those specific assets identified on
the Excluded Assets Schedule attached to this Agreement as Schedule 2.3.9;
2.3.10 All of Chancellor's rights in and to all causes of
action;
2.3.11 All tax refunds relating to the period prior to the
Closing; and
2.3.12 All other assets or Contracts, including but not
limited to those assets or Contracts associated with the Florida Agreement, that
are not specifically listed in this Agreement as the Florida Assets or used or
useful, as determined by Chancellor, in the operation or operations of the
Florida Stations.
2.4 TRANSFER OF ASSETS TO CHANCELLOR. Subject to the terms,
conditions and limitations contained herein, on the Closing Date, ARS shall
convey to Chancellor and Chancellor shall acquire from ARS ( to the extent ARS
acquires the same from FBC) all of the following assets, properties, interests
and rights (the "California Assets") free and clear of liens and encumbrances
except the California Permitted Liens under Section 2.6.2:
2.4.1 FCC LICENSES. All licenses, permits, special temporary
authority, program test authority and authorizations of any type whatsoever
issued by the FCC and any pending applications thereof, and used in connection
with the California Station (the "California Licenses"), including those
authorizations for the California Station identified in Schedule 2.4.1 to the
California Agreement and any renewals or modifications thereof.
2.4.2 OTHER GOVERNMENTAL AUTHORIZATIONS. All licenses,
permits, and other authorizations of any nature whatsoever issued by a
governmental authority and used in the operation of the California Station.
2.4.3 TANGIBLE PERSONAL PROPERTY. All equipment, office
furniture and fixtures, office materials and supplies, inventory, spare parts
and all other tangible personal property of every kind and description, and
ARS's rights therein, owned, leased or held by ARS and used in connection with
the operations of the California Station, including but not limited to those
items described or listed in Schedule 2.4.3, together with any replacements
thereof and additions thereto, made before the Closing Date, and less any
retirements or dispositions thereof made before the Closing Date in the ordinary
course of business.
2.4.4 CONTRACTS. All contracts, agreements, leases and
legally binding contractual rights of any kind, written or oral, relating to the
operation of the California Station ("California Contracts"), listed in Schedule
2.4.4 or entered into before the Closing Date in the ordinary course of business
of the California Station.
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2.4.5 INTELLECTUAL PROPERTY. All trademarks, trade names,
service marks (including the Call Sign KSTE), franchises, copyrights, including
registrations and applications for registration of any of them, computer
software programs and programming material of whatever form or nature, jingles,
slogans, the California Station's logos and all other logos or licenses to use
same and all other intangible property rights of ARS, which are used exclusively
in connection with the operation of the California Station, including but not
limited to those listed Schedule 2.4.5 (collectively, the "California
Intellectual Property") together with any associated good will and any additions
thereto before the Closing Date;
2.4.6 STATION RECORDS. All of the files, documents, records,
and books of account relating to the operation of the California Station or to
the California Assets, including without limitation the California Station's
public files, programming information and studies, technical information and
engineering data, news and advertising studies or consulting reports, marketing
studies, demographic data, sales correspondence, lists of advertisers,
promotional materials, credit and sales reports and filings with the FCC, copies
of all written Contracts to be assigned hereunder, logs, software programs and
books and records relating to employees, financial, accounting and operation
matters; but excluding records relating solely to any Excluded California Asset;
2.4.7 MANUFACTURER/VENDOR WARRANTIES. All manufacturers' and
vendors' warranties relating to items included in the California Assets and all
similar rights against third parties relating to items included in the
California Assets;
2.4.8 REAL ESTATE. All real property used in operating the
California Station together with all appurtenant easements thereunto and all
structures, fixtures and improvements located thereon as more fully described in
Schedule 2.4.8, together with any additions thereto before the Closing Date (the
"California Real Estate"); and
2.4.9 ALL OTHER CALIFORNIA STATION ASSETS. Except for
Excluded California Assets, such other assets, properties, interests and rights
that are used exclusively in connection with the operation of the California
Station or that are located as of the Closing Date on the California Real
Estate.
2.5 EXCLUDED CALIFORNIA ASSETS. Notwithstanding anything to the
contrary contained herein, it is expressly understood and agreed that the
California Assets shall not include the following assets along with all rights,
title and interest therein (the "Excluded California Assets"):
2.5.1 CASH. All cash, marketable securities and cash
equivalents of ARS on hand and/or in banks;
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2.5.2 RECEIVABLES. All cash accounts receivable or notes
receivable of ARS;
2.5.3 CONSUMED PROPERTY. All tangible and intangible
personal property related to the California Station disposed of or consumed in
the ordinary course of business of ARS or FBC before the Closing Date, or as
permitted under the terms hereof;
2.5.4 TERMINATED CONTRACTS. All non-assumed Contracts or
Contracts that have terminated or expired prior to the Closing Date in the
ordinary course of business of ARS or FBC and as permitted hereunder;
2.5.5 CORPORATE RECORDS. ARS's corporate seal, minute books,
charter documents, corporate stock record book and such other books and records
as pertain to the organization, existence or share capitalization of ARS and
duplicate copies of all books and records transferred to Chancellor hereunder as
are necessary to enable ARS to file its tax returns and reports as well as any
other records or materials relating to ARS or its business and not involving or
relating to the California Assets or the operation or operations of the
California Station;
2.5.6 INSURANCE. Contracts of insurance and all insurance
proceeds or claims made by ARS;
2.5.7 EMPLOYEE PLANS. All pension, profit sharing or cash or
deferred (Section 401(k)) plans and trusts and the assets thereof and any other
employee benefit plan or arrangement and the assets thereof, if any, maintained
by ARS; and
2.5.8 Any right, to use the name "ARS" or "American Radio" or
"American Radio Systems Corporation" and any variations thereof;
2.5.9 Those specific assets identified on the Excluded Assets
Schedule attached to this Agreement as Schedule 2.5.9;
2.5.10 All of ARS's rights in and to all causes of action;
2.5.11 All tax refunds relating to the period prior to the
Closing; and
2.5.12 All other assets or Contracts, including but not
limited to those assets or Contracts associated with the California Agreement
that are not specifically listed in this Agreement as the California Assets or
used or useful, as determined by ARS, in the operation or operations of the
California Station.
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2.6 PERMITTED LIENS.
2.6.1 FLORIDA STATIONS. The Florida Assets shall be conveyed
to ARS free and clear of all liens and encumbrances except the liens and
encumbrances listed in Schedule 2.6.1 (the "Florida Permitted Liens").
2.6.2 CALIFORNIA STATION. The California Assets shall be
conveyed to Chancellor free and clear of all liens and encumbrances except the
liens and encumbrances listed in Schedule 2.6.2 (the "California Permitted
Liens").
SECTION 3. CONSIDERATION.
3.1 CONSIDERATION FROM CHANCELLOR.
3.1.1 FLORIDA AGREEMENT. If the Florida Agreement closes and
Chancellor acquires the Florida Assets, then the consideration delivered by
Chancellor to ARS shall consist of the Florida Assets described in Section 2.2.
Further, and subject to the limitations contained in Section 4.1, Chancellor
shall assume the California Assumed Liabilities.
3.1.2 FLORIDA AGREEMENT FAILS TO CLOSE. If the Florida
Agreement does not close and Chancellor does not acquire the Florida Assets,
then the consideration delivered by Chancellor to ARS for the purchase of the
California Assets shall consist of Seven Million Dollars ($7,000,000), subject
to any adjustments provided herein (the "Alternative California Cash Purchase
Price"). The Alternative California Purchase Price shall be paid to ARS at
Closing by wire transfer of immediately available funds. Further and subject to
the limitations contained in Section 4.1, Chancellor shall assume the California
Assumed Liabilities.
3.2 CONSIDERATION FROM ARS.
The consideration delivered by ARS to Chancellor shall consist
of:
(a) the California Assets described in Section 2.4 less any
Excluded California Assets described in Section 2.5. Further and subject to
the limitations contained in Section 4.3, ARS shall assume the Florida Assumed
Liabilities; and
(b) the sum of Thirty-three Million Dollars ($33,000,000),
subject to any adjustments provided herein (the "Florida Cash Purchase Price").
This Florida Cash Purchase Price shall be paid to Chancellor at Closing by wire
transfer of immediately available funds.
3.3 ADJUSTMENTS TO CASH PAYMENTS. The cash payment(s) contemplated
in Sections 3.1 and 3.2 shall be adjusted as follows:
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3.3.1 ADJUSTMENTS FOR CALIFORNIA STATION OPERATIONS. Subject
to the California Station LMA to be entered into pursuant to Section 7.1 herein,
income and expenses from the operation of the California Station shall be
allocated to the parties on the principle that (i) ARS shall be entitled to all
income attributable to, and shall be responsible for all expenses arising out
of, the operation of the California Station up to 11:59 PM on the Closing Date
(the "Effective Time") and (ii) Chancellor shall be entitled to all income
attributable to, and shall be responsible for all expenses arising out of, the
operation of the California Station after the Effective Time. Overlapping items
of income and expense shall be prorated as of the Effective Time.
3.3.2 ADJUSTMENTS FOR FLORIDA STATION OPERATIONS. Subject to
the Florida Station LMA to be entered into pursuant to Section 7.2, herein,
income and expenses from the operation of the California Station shall be
allocated to the parties on the principle that (i) ARS shall be entitled to all
income attributable to, and shall be responsible for all expenses arising our
of, the operation of the California Station up to the Effective Time and (ii)
Chancellor shall be entitled to all income attributable to, and shall be
responsible for all expenses arising out of, the operation of the California
Station after the Effective Time. Overlapping items of income and expense shall
be prorated as of the Effective Time.
3.3.3 DEFINITION OF BUYER AND SELLER.
(a) For purposes of Section 3.3.3 - 3.3.6, only, Buyer
means (i) Chancellor with respect to the California Station and (ii) ARS with
respect to the Florida Stations.
(b) For purposes of Section 3.3.3 - 3.3.6, only, Seller
means (i) ARS with respect to the California Station and (ii) Chancellor with
respect to the Florida Stations.
3.3.4 ITEMS SUBJECT TO ADJUSTMENT. Items subject to
adjustment pursuant to Sections 3.3.1 and 3.3.2 include, but are not limited to,
expenses for goods and services received both before and after the Effective
Time, utilities charges, ad valorem, real estate, property and other taxes
(other than income taxes, which shall be Seller's sole responsibility for all
taxable periods ending prior to and including the Closing Date, and those taxes
arising from the sale and transfer of any of the Florida Stations' or the
California Station's assets, which shall be paid as set forth in Section 21.2),
income and expenses under the various assumed contracts (other than Trade
Agreements), prepaid expenses, music and other license fees (including any
retroactive adjustments thereof), wages, salaries, and other employee benefit
expenses (whether such wages, salaries or benefits are current or deferred
expenses) (including, without limitation, liabilities accrued up to the
Effective Time for bonuses, commissions, vacation pay, payroll taxes, workers'
compensation and social security taxes) and rents and similar prepaid and
deferred items.
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3.3.5 AD VALOREM OF REAL ESTATE TAXES. Ad valorem and other
real estate taxes shall be apportioned on the basis of the taxes assessed for
the most recently-completed calendar year, with a reapportionment as promptly as
practicable after the tax rates and real property valuations for the calendar
year in which the Closing occurs can be ascertained. In addition, Buyers shall
be entitled to a credit in this proration process for the amount of any taxes
(or other governmental charges) that are due and payable by Sellers, but are
being contested in good faith in appropriate proceedings and are secured by
Liens on the California Station's or Florida Stations' Assets that have not been
removed as of or before the Closing (but once such amounts are finally
determined, Buyers shall use such credit to remove such liens and return to
Sellers the excess of (i) the amount of such credit MINUS (ii) the amount of
such taxes or other governmental charges as finally determined, or Sellers shall
pay to Buyers the deficiency, as appropriate).
3.3.6 DISPUTE PROCEDURE FOR ALLOCATIONS. Allocation and
proration of the items set forth in Subsection 3.3.4 above shall be made by
Buyers and a statement thereof given to Sellers within thirty (30) days after
the Closing Date. Sellers shall give written notice of any objection thereto
within twenty (20) business days after delivery of such statement, detailing the
reason for such objection and stating the amount of the proposed final
allocation and proration. if a timely objection is made and the parties cannot
reach agreement within thirty (30) days after receipt of the objection as to the
amount of the final allocation and proration, the matter shall be referred to
Xxxxxx Xxxxxxxx, L.L.P. (the "Independent Auditor") to resolve the matter, whose
decision will be final and binding on the parties, and whose fees and expenses
shall be borne by Buyers and Sellers in accordance with the following: each
party shall pay an amount equal to the sum of all fees and expenses of the
Independent Auditor on a proportional basis taking into account the amount of
the net allocation and proration proposed by each of Buyers and Sellers and the
amount of the final allocation and proration determined by the Independent
Auditor (for example, if Buyers proposed a payment of $10 to Sellers, Sellers
proposed a payment of $100, and the Independent Auditor proposed a payment of
$30, Buyers would pay 20/90ths of the Independent Auditor's fees and Sellers
would pay 70/90ths of those fees based on the $90 in dispute between the
parties).
3.4 ALLOCATION OF CONSIDERATION. The value of the consideration
(including cash) that each party is exchanging under this Exchange Agreement is
Forty Million Dollars ($40,000,000). Seven Million Dollars ($7,000,000) of the
consideration exchanged shall be allocated to the California Assets. The
allocation of consideration among each item included in the California Assets
and the Florida Assets shall be made by Broadcast Investment Analysts, Inc. on
the basis of its independent appraisal of the California Assets and the Florida
Assets. This independent appraisal shall be paid for equally by the parties and
shall be considered binding by the parties. The parties shall use such
appraisal for all purposes, including for purposes of the federal and state
income tax returns.
3.4.1 CALIFORNIA STATION'S BARTER AND TRADE. If the value of
trade, barter and similar arrangements for the sale of advertising time for
other than cash that are assumed by
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Chancellor under this Agreement is $50,000 (or more) greater than the value
of the consideration to be received by Chancellor on or after the California
LMA Commencement Date with respect to the California Station, ARS shall pay
Chancellor the excess (other than the first $50,000) within 30 days after the
California LMA Commencement Date.
3.4.2 FLORIDA STATIONS' BARTER AND TRADE. If the value of
trade, barter and similar arrangements for the sale of advertising time for
other than cash that are assumed by ARS under this Agreement is $150,000 (or
more) greater than the value of the consideration to be received by ARS on or
after the Florida LMA Commencement Date with respect to the Florida Stations,
Chancellor shall pay ARS the excess (other than the first $150,000) within 30
days after the Florida LMA Commencement Date.
SECTION 4. ASSUMPTION OF OBLIGATIONS
4.1 CALIFORNIA ASSUMED LIABILITIES. Subject to the provisions of
this Section 4, and subject to the California Station LMA as set forth in
Section 7.1, hereof, Chancellor shall assume the obligations of ARS arising or
to be performed under such of the California Contracts as are listed in Schedule
4.1 hereto (the "California Assumed Liabilities"). In addition, Chancellor
shall assume ARS's post-closing obligations under Section 8 of the California
Agreement; however, such obligations shall be limited to providing assistance to
ARS and the selling party, and Chancellor shall have no obligation to provide
any payments which ARS may be obligated to make under the California Agreement.
4.2 CALIFORNIA RETAINED LIABILITIES. Notwithstanding anything
contained in this Agreement to the contrary, Chancellor expressly does not, and
shall not, assume or agree to pay, satisfy, discharge or perform and will not be
deemed by virtue of the execution and delivery of this Agreement to have assumed
or to have agreed to pay, satisfy, discharge or perform, any liabilities,
obligations or commitments of ARS of any nature whatsoever whether accrued,
absolute, contingent or otherwise and whether or not disclosed to Chancellor,
other than the California Assumed Liabilities. All of such liabilities and
obligations shall be referred to herein collectively as the "California Retained
Liabilities".
4.3 FLORIDA ASSUMED LIABILITIES. Subject to the provisions of this
Section 4, ARS shall assume the obligations of Chancellor arising or to be
performed on or after the Closing Date under such of the Florida Contracts as
are listed in Schedule 4.3 hereto (the "Florida Assumed Liabilities"). In
addition, ARS shall assume Chancellor's post-closing obligations under Article
11 of the Florida Agreement, however, such obligations shall be limited to
providing assistance to Chancellor and the selling party, and ARS shall have no
obligation to provide any payments which Chancellor may be obligated to make
under the Florida Agreement.
4.4 FLORIDA RETAINED LIABILITIES. Notwithstanding anything contained
in this Agreement to the contrary, ARS expressly does not, and shall not, assume
or agree to pay,
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satisfy, discharge or perform and will not be deemed by virtue of the
execution and delivery of this Agreement to have assumed or to have agreed to
pay, satisfy, discharge or perform, any liabilities, obligations or
commitments of Chancellor of any nature whatsoever whether accrued, absolute,
contingent or otherwise and whether or not disclosed to ARS, other than the
Florida Assumed Liabilities. All such liabilities and obligations shall be
referred to herein collectively as the "Florida Retained Liabilities".
SECTION 5. ESCROW DEPOSITS
5.1 CALIFORNIA ESCROW. Upon execution of this Agreement, Chancellor
shall deposit Three Hundred Fifty Thousand Dollars ($350,000) (the "California
Cash Deposit") or an original, irrevocable letter of credit, which should be in
a form reasonably satisfactory to ARS, issued by Banker's Trust Company for a
sum equal to the California Cash Deposit, with Star Media Group to be held
pursuant to the terms of the California Escrow Agreement appended hereto as
Exhibit 5.1. The California Deposit plus accrued interest shall be returned to
Chancellor at Closing. Further, if this Agreement terminates for any reason
other than a material breach of the Agreement by Chancellor, the California
Deposit plus accrued interest shall be returned to Chancellor.
5.2 FLORIDA ESCROW. Upon Execution of this Agreement, ARS shall
deposit Two Million Dollars ($2,000,000) (the "Florida Cash Deposit") or an
original, irrevocable letter of credit, which should be in a form reasonably
satisfactory to Chancellor, issued by Bank of New York for a sum equal to the
Florida Cash Deposit with Star Media Group to be held pursuant to the terms of
the Florida Escrow Agreement appended hereto as Exhibit 4.2. The Florida
Deposit plus accrued interest shall be paid to Chancellor at Closing and
credited against the cash payment required under Section 2.5 of this Agreement.
If this Agreement terminates for any reason other than a material breach of the
Agreement by ARS, the Florida Deposit plus accrued interest shall be returned to
ARS.
SECTION 6. GOVERNMENT CONSENTS
6.1 FCC CONSENT. The closing on the purchase and sale of the
California Assets and the Florida Assets is subject to and conditioned upon (a)
the parties obtaining the prior consent of the FCC to the transaction
contemplated in this Agreement ("FCC Consent") and (b) the FCC action granting
its consent becoming a "Final Order," IN ESSENCE, an action unappealable by
virtue of (x) the expiration of the period within which a timely request for
appeal, review or reconsideration could be filed and (y) the expiration of the
period within which the FCC or a Court could review the action on its own
motion, such periods having expired without the filing of any request for
appeal, review or reconsideration and without the review of the action on the
FCC's or Court's own motion.
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6.2 FCC APPLICATIONS. Within 10 days after the execution of this
Agreement or such earlier time as shall be agreed to by all of the parties
hereto, Chancellor and ARS shall file the applications with the FCC for FCC
Consent ("FCC Applications") to assign the California Station License to
Chancellor and the Florida Stations Licenses to ARS. Chancellor and ARS
shall prosecute the FCC Applications with all reasonable diligence and
otherwise use their best efforts to obtain the FCC Consents as expeditiously
as practicable (but neither Chancellor nor ARS shall have any obligation to
satisfy complainants or the FCC by taking any steps which would have a
material adverse effect upon Chancellor or ARS, or upon any of their
Affiliates). If the FCC Consents imposes any condition on Chancellor or ARS
such party shall use its reasonable efforts to comply with such condition;
provided, however, that neither Chancellor nor ARS shall be required
hereunder to comply with any condition that would have a material adverse
effect upon it or any of its Affiliates. If reconsideration of judicial
review is sought with respect to the FCC Consents, the party affected shall
vigorously oppose such efforts for reconsideration or judicial review;
provided, however, that nothing herein shall be construed to limit either
party's right to terminate this Agreement pursuant to Section 20 hereof.
6.3 FILINGS. As promptly as practicable after the execution of
this Agreement, Chancellor and ARS shall use their reasonable efforts to
obtain, and to cooperate with each other in obtaining, all authorizations,
consents, orders and approvals of any governmental authority that may be or
become necessary in connection with the consummation of the transactions
contemplated by this Agreement, and to take all reasonable actions to avoid
the entry of any order or decree by any governmental authority prohibiting
the consummation of the transactions contemplated hereby. These efforts
shall include, without limitation, filing any reports or notifications that
may be required to be filed by Chancellor and ARS under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 0000 (xxx "XXX Xxx") with the Federal Trade
Commission and the Antitrust Division of the Department of Justice. Each
party shall furnish to one another all such information in its possession as
may be necessary for the completion of the reports or notifications to be
filed by the other.
SECTION 7. LOCAL MARKETING AGREEMENTS
7.1 CALIFORNIA LOCAL MARKETING AGREEMENT. On or before August 1,
1996, the parties shall enter into a California Local Marketing Agreement
(the "California Station LMA") substantially in the form of the LMA appended
hereto as Exhibit 7.1.
7.2 FLORIDA LOCAL MARKETING AGREEMENT. On or before August 1,
1996, the parties shall enter into a Florida Local Marketing Agreement (the
"Florida Stations LMA") substantially in the form of the LMA appended hereto
as Exhibit 7.2. To the extent that Omni is required to be a party to the
Florida Stations LMA to effectuate its purposes, Chancellor shall use its
commercially reasonable efforts to obtain Omni's execution and performance of
the Florida Stations LMA and to assign or provide on terms reasonably
satisfactory to ARS, as soon as practicable after the execution of the
Agreement, but no sooner than August 1, 1996, the rights of
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Chancellor under the Local Marketing Agreement, if executed, currently being
negotiated by Chancellor and Omni with respect to the Florida Stations. ARS
shall not have any claim or right, including, without limitation, any right
to terminate this Agreement or any claim for damages, to the extent that
ARS's operation of the Florida Stations under or in accordance with the
Florida Stations LMA (i) causes any representation or warranty of Chancellor
to be rendered inaccurate or (ii) conflicts with any covenant to be complied
with by Chancellor on or prior to the Closing Date.
SECTION 8. COLLECTION OF ACCOUNTS RECEIVABLE
8.1 CALIFORNIA ACCOUNTS RECEIVABLE.
(a) Within five (5) days after the commencement of the
California Station LMA, ARS shall deliver to Chancellor a full and detailed
list of the accounts receivable relating to the California Station and its
operations prior to the Commencement Date ("California Accounts Receivable"),
designating with respect to each account receivable any portion thereof
attributable to services to be rendered by Chancellor after the Commencement
Date. The California Accounts Receivable shall not be purchased by
Chancellor and Chancellor agrees, however, that for a period of 90 days
following the Commencement Date (the "Collection Period"), it shall act as
ARS's agent for purposes of the collection of the California Accounts
Receivable and shall use reasonable efforts to collect the California
Accounts Receivable for the benefit of the ARS. Chancellor shall remit to
the ARS all amounts collected by the Chancellor for the ARS's benefit fifteen
days after the conclusion of the 90 day collection period. The collection
responsibilities imposed on Chancellor hereunder shall not require the
institution of suit or referral to a collection or similar agency, or the
institution of any proceeding against an account debtor under any bankruptcy,
insolvency, or similar law affecting the rights of creditors generally. Any
of the California Accounts Receivable which shall remain uncollected by
Chancellor at the conclusion of the Collection Period shall remain ARS's
assets and Chancellor's obligations under this Section 8.1 shall terminate.
Chancellor shall have no liability to ARS for the uncollectability of any of
the California Accounts Receivable.
(b) Chancellor agrees that it may not settle, discount
payment of, extend the terms of, or otherwise compromise any of the
California Accounts Receivable, except as consented to in writing by ARS. If
at the Commencement Date or at any time during the Collection Period an
account debtor is in bankruptcy, reorganization or similar proceeding, ARS
will assume the full collection responsibility as to such account and such
account will no longer be deemed a California Account Receivable for purposes
of this Agreement. Following the Commencement Date, Chancellor will give
prompt notice to ARS of any such bankruptcy, reorganization or other
proceeding affecting any debtor of the California Accounts Receivable after
receiving notice thereof.
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(c) During the Collection Period, any and all amounts
paid to Chancellor by an account debtor with respect to an account receivable
shall be applied first to payment of the California Account Receivable,
unless the account debtor disputes such California Account Receivable,
appropriately documents such dispute in writing, and prompt notice (including
all written documentation) of such dispute is given by Chancellor to ARS.
After the end of the Collection Period, Chancellor shall forward to ARS all
payments received that are reasonably identifiable (by invoice number, date
of service or other unambiguous reference) with the California Accounts
Receivable, within twenty (20) days of receipt.
(d) Chancellor does not guarantee the collection of the whole
or any part of the California Accounts Receivable.
8.2 FLORIDA ACCOUNTS RECEIVABLE.
(a) Within five (5) days of the Commencement of the Florida
Stations LMA, Chancellor shall deliver to ARS a full and detailed list of the
accounts receivable relating to the Florida Stations and its operations prior
to the Commencement Date ("Florida Accounts Receivable"), designating with
respect to each account receivable any portion thereof attributable to
services to be rendered by ARS after the Commencement Date. The Florida
Accounts Receivable shall not be purchased by ARS and ARS agrees, however,
that for a period of 90 days following the Commencement Date (the "Collection
Period"), it shall act as Chancellor's agent for purposes of the collection
of the Florida Accounts Receivable and shall use reasonable efforts to
collect the Florida Accounts Receivable for the benefit of the Chancellor.
ARS shall remit to Chancellor all amounts collected by ARS for Chancellor's
benefit fifteen days after the conclusion of the 90 day Collection Period.
The collection responsibilities imposed on ARS hereunder shall not require
the institution of suit or referral to a collection or similar agency, or the
institution of any proceeding against an account debtor under any bankruptcy,
insolvency, or similar law affecting the rights of creditors generally. Any
of the Florida Accounts Receivable which shall remain uncollected by ARS at
the conclusion of the Collection Period shall remain Chancellor's assets and
ARS's obligations under this Section 8.2 shall terminate. ARS shall have no
liability to Chancellor for the uncollectability of any of the Florida
Accounts Receivable.
(b) ARS agrees that it may not settle, discount payment
of, extend the terms of, or otherwise compromise any of the Florida Accounts
Receivable, except as consented to in writing by Chancellor. If at the
Commencement Date or at any time during the Collection Period an account
debtor is in bankruptcy, reorganization or similar proceeding, Chancellor
will assume the full collection responsibility as to such account and such
account will no longer be deemed a Florida Account Receivable for purposes of
this Agreement. Following the Commencement Date, ARS will give prompt notice
to Chancellor of any such bankruptcy, reorganization or other proceeding
affecting any debtor of the Florida Accounts Receivable after receiving
notice thereof.
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(c) During the Collection Period, any and all amounts
paid to ARS by an account debtor with respect to an account receivable shall
be applied first payment to the Florida Accounts Receivable, unless the
account debtor disputes such Florida Account Receivable, appropriately
documents such dispute in writing, and prompt notice (including all written
documentation) of such dispute is given by ARS to Chancellor. After the end
of the Collection Period, ARS shall forward to Chancellor all payments
received that are reasonably identifiable (by invoice number, date of service
or other unambiguous reference) with the Florida Accounts Receivable, within
twenty (20) days.
(d) ARS does not guarantee the collection of the whole or any
part of the Florida Accounts Receivable.
SECTION 9. THIRD PARTY CONSENTS
9.1 CALIFORNIA CONSENTS. ARS shall use its reasonable best
efforts to obtain all third party consents necessary for the conveyance of
the California Assets to Chancellor without the imposition of any conditions
that would be adverse to Chancellor.
9.2 FLORIDA CONSENTS. Chancellor shall use its reasonable best
efforts to obtain all third party consents necessary for the conveyance of
the Florida Assets to ARS without the imposition of any conditions that would
be adverse to ARS.
9.3 FAILURE TO OBTAIN CONSENTS.
(a) If Chancellor fails to obtain any of the Consents
referenced in Section 9.2, Chancellor shall use its reasonable best efforts
(i) to provide ARS the financial and business benefits ARS would have enjoyed
had the consent been given and (ii), upon the request of ARS, to enforce in
its name for the account of ARS any rights that would otherwise have been
available to ARS had the consent been granted.
(b) If ARS fails to obtain any of the Consents
referenced in Section 9.2, ARS shall use its reasonable best efforts (i) to
provide Chancellor the financial and business benefits Chancellor would have
enjoyed had the consent been given and (ii), upon the request of Chancellor,
to enforce in its name for the account of Chancellor any rights that would
otherwise have been available to Chancellor had the consent been granted.
SECTION 10. REPRESENTATIONS AND WARRANTIES OF CHANCELLOR
10.1 ORGANIZATION AND STANDING. Chancellor is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and is qualified to conduct business in the States of Florida and
California.
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10.2 AUTHORIZATION AND BINDING OBLIGATION. Chancellor has all
necessary corporate power and authority to enter into and perform this
Agreement and the transactions contemplated hereby. Chancellor's execution,
delivery and performance of this Agreement and the transactions contemplated
hereby have been duly and validly authorized by all necessary corporate
action on behalf of Chancellor and this Agreement constitutes a valid and
binding obligation of Chancellor, enforceable in accordance with its terms.
10.3 QUALIFICATION. To Chancellor's knowledge, there is no fact,
allegation, condition, or circumstance that could reasonably be expected to
prevent the prompt grant of the FCC Consent. Chancellor knows of no fact
that would, under the Communications Act of 1934, as amended, or the rules,
regulations and policies of the FCC, disqualify Chancellor from becoming the
licensee of either the Florida Stations or the California Station. There are
no proceedings, complaints, notices of forfeiture, claims, or investigations
pending or, to the knowledge of Chancellor threatened against any or in
respect of any of the broadcast stations licensed to Chancellor or its
affiliates that would materially impair the qualifications of Chancellor to
become a licensee of the Florida Stations or the California Station or that
would delay the FCC's processing of the FCC Applications.
10.4 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
Except as set forth in Schedule 10.4 hereof, the execution, delivery and
performance of this Agreement by Chancellor: (a) do not violate or conflict
with any of the terms, conditions or provisions of the Certificate of
Incorporation or By-Laws of Chancellor; (b) do not require the consent of any
third party not affiliated with Chancellor; (c) will not violate any
applicable law, judgment, order, injunction, decree, rule, regulation or
ruling of any governmental authority to which Chancellor is a party; and (d)
will not either alone or with the giving of notice or the passage of time,
violate the terms, conditions or provisions of, or constitute a default
under, any agreement, instrument, license or permit to which Chancellor is
now subject.
10.5 LITIGATION: COMPLIANCE WITH LAW. Except as disclosed in
Schedule 10.5, there is no litigation, administrative action, arbitration or
other proceeding, or petition, complaint or investigation before any court or
governmental body, pending against Chancellor that would adversely affect
Chancellor's ability to perform its obligations pursuant to this Agreement or
the agreements to be executed by Chancellor in connection herewith.
Chancellor has committed no violation of any applicable law, regulation or
ordinance or any other requirement of any governmental body or court which
would have a material adverse effect on Chancellor or its ability to perform
their respective obligations pursuant to this Agreement or the agreements to
be executed in connection herewith.
10.6 BROKER/FINDER FEES. Star Media Group is the sole and
exclusive broker in this transaction. Chancellor has not incurred any
obligation or liability, contingent or otherwise, for brokerage or finders
fees or agents' commissions or other like payment in connection with this
Agreement or the transactions contemplated hereby for which ARS has any
liability.
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Chancellor is solely responsible for Star Media Group's fee.
10.7 REPRESENTATIONS AND WARRANTIES AS TO THE FLORIDA STATIONS.
Chancellor previously has delivered to ARS true, correct and complete copies
of the executed Florida Agreement together will all disclosure schedules,
exhibits, and annexes thereto. With respect to the Florida Stations,
Chancellor to the best of its knowledge, hereby makes (as of the date or
dates on which those representations and warranties were made to Chancellor
by Omni) to ARS each and every of the representations and warranties of Omni
each of which is incorporated herein by reference as though contained herein.
Chancellor makes no additional representations or warranties with respect to
the Florida Stations.
SECTION 11. REPRESENTATION AND WARRANTIES OF ARS
11.1 ORGANIZATION AND STANDING. ARS is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and is qualified to conduct business in the States of Florida and
California.
11.2 AUTHORIZATION AND BINDING OBLIGATION. ARS has all necessary
corporate power and authority to enter into and perform this Agreement and
the transactions contemplated hereby. ARS's execution, delivery and
performance of this Agreement and the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action on behalf
of ARS and this Agreement constitutes a valid and binding obligation of ARS,
enforceable in accordance with its terms.
11.3 QUALIFICATION. To ARS's knowledge, there is no fact,
allegation, condition, or circumstance that could reasonably be expected to
prevent the prompt grant of the FCC Consent. ARS knows of no fact that
would, under the Communications act of 1934, as amended, or the rules,
regulations and policies of the FCC, disqualify ARS from becoming the
licensee of the Florida Stations. There are no proceedings, complaints,
notices of forfeiture, claims, or investigations pending or, to the knowledge
of ARS threatened against any or in respect of any of the broadcast stations
licensed to ARS or its affiliates that would materially impair the
qualifications of ARS to become a licensee of the Florida Stations or remain
the licensee of the California Station or that would delay the FCC's
processing of the FCC Applications.
11.4 ABSENCE OF CONFLICTING AGREEMENTS OR REQUIRED CONSENTS.
Except as set forth in Schedule 11.4 hereof, the execution, delivery and
performance of this Agreement by ARS: (a) do not violate or conflict with
any of the terms, conditions or provisions of the Certificate of
Incorporation or By-Laws of ARS; (b) do not require the consent of any third
party not affiliated with ARS; (c) will not violate any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which ARS is a party; and (d) will not either alone
or with the giving of notice or the passage of time, violate the terms,
conditions or provisions of, or constitute a default under, any agreement,
instrument, license or
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permit to which ARS is now subject.
11.5 LITIGATION: COMPLIANCE WITH LAW. Except as disclosed in
Schedule 11.5, there is no litigation, administrative action, arbitration or
other proceeding, or petition, complaint or investigation before any court or
governmental body, pending against ARS that would adversely affect ARS's
ability to perform its obligations pursuant to this Agreement or the
agreements to be executed by ARS in connection herewith. ARS has committed
no violation of any applicable law, regulation or ordinance or any other
requirement of any governmental body or court which would have a material
adverse effect on ARS or its ability to perform its obligations pursuant to
this Agreement or the agreements to be executed in connection herewith.
11.6 BROKER/FINDER FEES. Star Media Group is the sole and
exclusive broker in this transaction. ARS has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders fees or agents'
commissions or other like payment in connection with this Agreement or the
transactions contemplated hereby for which Chancellor has any liability.
Chancellor is solely responsible for Star Media Group's fee.
11.7 REPRESENTATIONS AND WARRANTIES AS TO THE CALIFORNIA STATION.
ARS previously has delivered to Chancellor true, correct and complete copies
of the executed California Agreement together will all disclosure schedules,
exhibits, and annexes thereto. With respect to the California Station, ARS
to the best of its knowledge, hereby makes to Chancellor each and every of
the representations and warranties contained in the California Agreement,
each of which is incorporated herein by reference as though contained herein.
In addition, ARS makes each and every of the representations and warranties
contained in the California Agreement to Chancellor for the period after the
FBC Closing when ARS acquired the California Station and the Closing Date
hereunder, subject to the California Station LMA.
SECTION 12. COVENANTS OF CHANCELLOR
12.1 CONDUCT OF STATION:
12.1.1 Chancellor covenants and agrees with ARS that
between the date hereof and the Florida Stations LMA Commencement Date
(except as otherwise noted below), Chancellor with respect to the Florida
Stations (to the extent that it is programming the Florida Stations pursuant
to a local marketing agreement with Omni and is authorized under that said
local marketing agreement to do so) shall:
(i) use commercially reasonable efforts to
maintain the Florida Stations present business organization, keep available
the services of the Florida Stations' employees and independent contractors,
preserve the Florida Stations' relationships with the Florida Stations'
customers and others having business relationships with the Florida Stations,
and refrain from materially and adversely changing any of the Florida
Stations'
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business policies including but not limited to advertising (including
substantially the same amount of cash expenditure), marketing, pricing,
purchasing, personnel, sales, and budget policies);
(ii) maintain the Florida Stations' books of
account and records in the usual and ordinary manner and in accordance with
generally accepted accounting principles;
(iii) operate the Florida Stations in the usual
and ordinary course of business in accordance with past practice and conduct
the Florida Stations' business in all material respects in compliance with
the terms of the Florida Licenses and all applicable laws, rules, and
regulations, including, without limitation, the applicable rules and
regulations of the FCC through the Closing Date;
(iv) use, repair, and, if necessary, replace
any of WEAT (AM)/(FM)'s, and XXXX (FM)'s studios and the Florida Stations'
transmission assets in a reasonable manner consistent with historical
practice and maintain its assets in substantially their current condition,
ordinary wear and tear excepted;
(v) maintain appropriate insurance for the
Florida Stations through the Closing Date;
(vi) not incur any debts or obligations to be
performed by ARS pursuant to the Florida Agreement that exceeds Ten-thousand
Dollars ($10,000) individually or Twenty-five Thousand Dollars ($25,000) in
the aggregate through the Closing Date;
(vii) not lease, mortgage, pledge, or subject to
a lien, claim, or encumbrance (other than Permitted Liens ) any of the
Florida Assets or sell or transfer any of the Florida Assets without
replacing such Florida Assets with an asset of substantially the same value
and utility;
(viii) without the prior consent of ARS, which
consent shall not be unreasonably withheld or delayed, (x) not modify or
extend any Florida Stations' Contracts or (y) enter into any new Florida
Stations' Contract the payments under which exceeds Ten-thousand Dollars
($10,000) individually or Twenty-five Thousand Dollars ($25,000) in the
aggregate through the Commencement Date;
(ix) not make or grant any general wage or
salary increase or generally materially modify the Florida Stations'
employees' terms and conditions of employment;
(x) not make any change in the Florida
Stations' accounting principles, methods, or practices followed by it or
depreciation or amortization policies or rates;
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(xi) not make any loans or make any dividends
or distributions other than of Excluded Assets of the Florida Stations;
(xii) other than in the ordinary course of
business, not cancel or compromise any debt or claim, or waive or release any
right, of material value;
(xiii) enforce, in its own name and for the
benefit of ARS, all representations, warranties and covenants of Omni under
the Florida Agreement insofar as such representations, warranties and
covenants affect or relate to the Florida Assets. The quantity, identity,
character, quality of and title to the Florida Assets conveyed by Chancellor
to ARS hereunder shall be substantially the same as the quantity, identity,
character and quality of and title to the assets of the Florida Stations
received by Chancellor from Omni pursuant to the Florida Agreement.
12.1.2 For purposes of compliance with Section 12.1, any
violation of the above-referenced covenants resulting in liabilities to ARS,
in the aggregate, less than the Indemnification Basket as defined in Section
19.3 below, shall not be deemed material. Such liabilities shall nevertheless
constitute Damages for purposes of the indemnification agreement contained in
the Section 19 hereof.
12.2 Chancellor shall give or cause the Florida Stations to (i)
give ARS and ARS's counsel, accountants, engineers and other representatives,
including environmental consultants, reasonable access during normal
business hours to all of Chancellor's properties, books, Contracts, Trade
Agreements, reports and records including financial information and tax
returns relating to the Florida Stations, and to all real estate, buildings
and equipment relating to the Florida Stations, in order that ARS may have
full opportunity to make such investigation at the sole expense of ARS,
including but not limited to, environmental assessments, as it desires of the
affairs of the Florida Stations and (ii) furnish ARS with information, and
copies of all documents and agreements including but not limited to financial
and operating data and other information concerning the financial condition,
results of operations and business of the Florida Stations, that ARS may
reasonably request. The rights of ARS under this Section shall not be
exercised in such a manner as to interfere unreasonably with the business of
the Florida Stations.
12.3 NO INCONSISTENT ACTION. Chancellor shall not take any action
that is materially inconsistent with its obligations under this Agreement.
12.4 UPDATING OF SCHEDULES. From time to time prior to the
Closing, Chancellor will supplement or amend the Schedules delivered in
connection herewith with respect to any matter which exists or occurs after
the date of this Agreement and which, if existing or occurring at or prior to
the date of this Agreement, would have been required to be set forth or
described in such Schedules or which is necessary to correct any information
in such Schedules which has been rendered inaccurate thereby. No matter so
disclosed shall affect the
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requirements of Section 16.1, but if the Closing hereunder shall occur, no
said matter disclosed pursuant to Section 12.3 shall have the basis for any
claims for indemnification hereunder.
12.5 ENFORCEMENT OF AGREEMENTS. Chancellor shall use its
reasonable best efforts to perform and carry out all their respective
obligations under, and, if necessary, Chancellor shall seek the specific
performance of the transactions contemplated by the Florida Agreement.
Chancellor shall use its reasonable best efforts to perform and carry out,
and to cause the other parties thereto to perform and carry out, all their
respective obligations under the LMA's relating to the Florida Stations.
12.6 FCC REPORTS. From the Time of Closing on the Florida
Agreement until the Closing Date hereunder, Chancellor shall file on a
current basis until the Closing Date all material reports and documents
required to be filed with the FCC with respect to the Florida Stations'
Licenses. Copies of each such report and document filed between the date
hereof and the Closing Date shall be furnished to ARS promptly after its
filing.
12.7 NOTIFICATION. Chancellor shall promptly notify ARS in writing
of (i) any litigation, arbitration or administrative proceeding pending or,
to its knowledge, threatened against Chancellor which challenges the
transactions contemplated hereby or (ii) the failure of Chancellor, or any
employee or agent of Chancellor to comply with or satisfy in any material
respect any covenant, condition or agreement to be complied with or satisfy
in any material respect any covenant, condition or agreement to be complied
with or satisfied by it hereunder and (iii) the occurrence of any event that
would entitle ARS to terminate this Agreement pursuant to Section 20. No
matter so disclosed shall affect the requirements of Section 16.1, but if the
Closing hereunder shall occur, no said matter disclosed pursuant to Section
12.3 shall have the basis for any claims for indemnification hereunder.
12.8 POST-CLOSING ACCESS. Chancellor, for a period of five (5)
years following the Closing Date, shall make available during normal business
hours for audit and inspection by ARS and its representatives, for any
reasonable purpose and upon reasonable notice, all records, files, documents
and correspondence transferred to it hereunder relating to the pre-closing
period. Chancellor shall at no time dispose of or destroy any such records,
files, documents and correspondence without giving thirty (30) days prior
notice to ARS to permit ARS, at its expense, to examine, duplicate or take
possession of and title to such records, files, documents and correspondence.
All information, records, files, documents and correspondence made available
or disclosed to ARS under this Section 12.7 shall be kept confidential by ARS.
12.9 Chancellor will use commercially reasonable efforts to obtain
all necessary consents, authorizations, or approvals, in each case, required
for the consummation of the transactions contemplated by this Agreement.
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SECTION 13. COVENANTS OF ARS
13.1 CONDUCT OF STATION:
13.1.1 ARS covenants and agrees with Chancellor that
between the date hereof and the California Station LMA Commencement Date
(except as otherwise noted below), ARS with respect to the California Station
shall:
(i) use commercially reasonable efforts to
maintain the California Station's present business organization, keep
available the services of the California Station's employees and independent
contractors, preserve the California Station's relationships with the
California Station's customers and others having business relationships with
the California Station, and refrain from materially and adversely changing
any of the California Station's business policies including but not limited
to advertising (including substantially the same amount of cash expenditure),
marketing, pricing, purchasing, personnel, sales, and budget policies);
(ii) maintain the California Station's books
of account and records in the usual and ordinary manner and in accordance
with generally accepted accounting principles;
(iii) operate in the usual and ordinary
course of business in accordance with past practice and conduct the
California Station's business in all material respects in compliance with the
terms of the California Licenses and all applicable laws, rules, and
regulations, including, without limitation, the applicable rules and
regulations of the FCC through the Closing Date;
(iv) use, repair, and, if necessary, replace
any California Station studio and transmission assets in a reasonable manner
consistent with historical practice and maintain its assets in substantially
their current condition, ordinary wear and tear excepted;
(v) maintain appropriate insurance for the
California Station through the Closing Date;
(vi) not incur any debts or obligations to
be performed by Chancellor pursuant to the California Agreement that exceeds
Five Thousand Dollars ($5,000) individually or Ten Thousand Dollars ($10,000)
in the aggregate through the Closing Date;
(vii) not lease, mortgage, pledge, or subject
to a lien, claim, or encumbrance (other than Permitted Liens ) any of the
California Assets or sell or transfer any of the California Assets without
replacing such California Assets with an asset of substantially the same
value and utility;
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(viii) without the prior consent of Chancellor, which
consent shall not be unreasonably withheld or delayed, (x) not modify or extend
any California Station Contracts or (y) enter into any new California Station
Contract the payments under which exceeds Five Thousand Dollars ($5,000)
individually or Ten Thousand Dollars ($10,000) in the aggregate through the
Commencement Date;
(ix) not make or grant any general wage or salary increase
or generally materially modify the California Station's employees' terms and
conditions of employment;
(x) not make any change in the California Station's
accounting principles, methods, or practices followed by it or depreciation or
amortization policies or rates;
(xi) not make any loans or make any dividends or
distributions other than of Excluded Assets of the California Station;
(xii) other than in the ordinary course of business, not
cancel or compromise any debt or claim, or waive or release any right, of
material value;
(xiii) ARS shall enforce, in its own name and for the
benefit of Chancellor, all representations, warranties and covenants of FBC
under the California Agreement insofar as such representations, warranties and
covenants affect or relate to the California Assets. The quantity, identity,
character, quality of and title to the California Assets conveyed by ARS to
Chancellor hereunder shall be substantially the same as the quantity, identity,
character and quality of and title to the assets of the California Station
received by ARS from FBC pursuant to the California Agreement.
13.1.2 For purposes of compliance with Section 13.1, any
violation of the above-referenced covenants resulting in liabilities to
Chancellor, in the aggregate, less than the Indemnification Basket as defined
in Section 19.3 below, shall not be deemed material. Such liabilities shall
nevertheless constitute Damages for purposes of the indemnification agreement
contained in Section 19 hereof.
13.2 ARS shall give or cause the California Station to (i) give
Chancellor and Chancellor's counsel, accountants, engineers and other
representatives, including environmental consultants, reasonable access during
normal business hours to all of ARS's properties, books, Contracts, Trade
Agreements, reports and records including financial information and tax returns
relating to the California Station, and to all real estate, buildings and
equipment relating to the California Station, in order that Chancellor may have
full opportunity to make such investigation, including but not limited to,
environmental assessments, as it desires of the affairs of the California
Station and (ii) furnish Chancellor with information, and copies of all
documents and agreements including but not limited to financial and operating
data and other information concerning the financial condition, results of
operations and business of the California Station,
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that Chancellor may reasonably request. The rights of Chancellor under this
Section shall not be exercised in such a manner as to interfere unreasonably
with the business of the California Station.
13.3 NO INCONSISTENT ACTION. ARS shall not take any action that is
materially inconsistent with its obligations under this Agreement.
13.4 UPDATING OF SCHEDULES. From time to time prior to the Closing,
ARS will supplement or amend the Schedules delivered in connection herewith with
respect to any matter which exists or occurs after the date of this Agreement
and which, if existing or occurring at or prior to the date of this Agreement,
would have been required to be set forth or described in such Schedules or which
is necessary to correct any information in such Schedules which has been
rendered inaccurate thereby. No matter so disclosed shall affect the
requirements of Section 16.1, but if the Closing hereunder shall occur, no said
matter disclosed pursuant to Section 12.3 shall have the basis for any claims
for indemnification hereunder.
13.5 ENFORCEMENT OF AGREEMENTS. ARS shall use its reasonable best
efforts to perform and carry out all their respective obligations under, the FBC
Agreement. ARS shall use its reasonable best efforts to perform and carry out,
and to cause the other parties thereto to perform and carry out, all their
respective obligations under the LMA's relating to the California Station.
13.6 FCC REPORTS. From the Time of Closing on the California Station
until the Closing Date hereunder, ARS shall file on a current basis until the
Closing Date all material reports and documents required to be filed with the
FCC with respect to the California Station Licenses. Copies of each such report
and document filed between the date hereof and the Closing Date shall be
furnished to Chancellor promptly after its filing.
13.7 NOTIFICATION. ARS shall promptly notify Chancellor in writing of
(i) any litigation, arbitration or administrative proceeding pending or, to its
knowledge, threatened against ARS which challenges the transactions contemplated
hereby or (ii) the failure of ARS, or any employee or agent of ARS to comply
with or satisfy in any material respect any covenant, condition or agreement to
be complied with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by it hereunder and (iii) the
occurrence of any event that would entitle Chancellor to terminate this
Agreement pursuant to Section 20. No matter so disclosed shall affect the
requirements of Section 16.1, but if the Closing hereunder shall occur, no said
matter disclosed pursuant to Section 12.3 shall have the basis for any claims
for indemnification hereunder.
13.8 POST-CLOSING ACCESS. ARS, for a period of five (5) years
following the Closing Date, shall make available during normal business hours
for audit and inspection by Chancellor and its representatives, for any
reasonable purpose and upon reasonable notice, all records, files, documents
and correspondence transferred to it hereunder relating to the pre-
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closing period. ARS shall at no time dispose of or destroy any such records,
files, documents and correspondence without giving thirty (30) days prior
notice to Chancellor to permit Chancellor, at its expense, to examine,
duplicate or take possession of and title to such records, files, documents
and correspondence. All information, records, files, documents and
correspondence made available or disclosed under this Section 13.8 shall be
kept confidential.
13.9 ARS will use commercially reasonable efforts to obtain all
necessary consents, authorizations, or approvals, in each case, required for the
consummation of the transactions contemplated by this Agreement.
SECTION 14. JOINT COVENANTS
Chancellor and ARS covenant and agree that they shall act in accordance
with the following:
14.1 CONFIDENTIALITY. Each of Chancellor and ARS shall each keep
confidential all information obtained by it with respect to the other parties
hereto in connection with this Agreement and the negotiations preceding this
Agreement, and will use such information solely in connection with the
transactions contemplated by this Agreement, and if the transactions
contemplated hereby are not consummated for any reason, each shall return to the
other party hereto, without retaining a copy thereof, any schedules, documents
or other written information obtained from such other party in connection with
this Agreement and the transactions contemplated hereby except to the extent
required or useful in connection with any claim made with respect to the
transactions contemplated by this Agreement or the negotiation thereof.
Notwithstanding the foregoing, no party shall be required to keep confidential
or return any information which (i) is known or available through other lawful
sources, not bound by a confidentiality agreement with the disclosing party, or
(ii) is or becomes publicly known through no fault of the receiving party or its
agents, or (iii) is required to be disclosed pursuant to an order or request of
a judicial or government authority (provided the non-disclosing party is given
reasonable prior notice such that it may seek, at its expense, confidential
treatment of the information to be disclosed), (iv) is developed by the
receiving party independently of the disclosure by the disclosing party, (v) is
required to be disclosed under applicable law or rule, as determined by counsel
for the receiving party or (vi) is required to be disclosed in connection with
any sale, in whole or in party of the assets, stock or business of Chancellor or
Chancellor Broadcasting Company or ARS, respectively, provided the recipient of
said information has executed a confidentiality agreement for such a
transaction.
14.2 COOPERATION. Chancellor and ARS shall cooperate fully with one
another in taking any actions, including actions to obtain the required consent
of any governmental instrumentality or any third party necessary or helpful to
accomplish the transactions contemplated by this Agreement; provided, however,
that no party shall be required to take any action which would have a material
adverse effect upon it.
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14.3 CONTROL OF STATIONS. Prior to Closing, Chancellor shall not,
directly or indirectly, control or direct the operations of the California
Station, and ARS shall not, directly or indirectly, control or direct the
operations of the Florida Stations. Such operations, including complete control
over the Florida Stations' or the California Station's programming, employees
and policies, shall be the sole responsibility of current licensees.
14.4 BULK SALES LAWS. Chancellor hereby waives compliance by ARS
and ARS hereby waives compliance by Chancellor with the provisions of the "bulk
sales" or similar laws of any state. ARS agrees to indemnify Chancellor and
Chancellor agrees to indemnify ARS and each party agrees to hold the other
harmless from any and all loss, cost, damage and expense (including but not
limited to, reasonable attorney's fees) sustained by one party as a result of
any failure of the other party to comply with any "bulk sales" or similar laws.
14.5 PUBLIC ANNOUNCEMENTS. Neither Chancellor nor ARS shall issue
any press release or make any disclosure with respect to the transaction
contemplated by this Agreement without the prior written approval of the other
party, except as may be required by applicable law or by obligations pursuant to
any listing agreement with any securities exchange or any stock exchange
regulations.
14.6 XXXX-XXXXX-XXXXXX. ARS and Chancellor shall submit to the United
States Department of Justice and the United States Federal Trade Commission not
later than 15 business days after the date of this Agreement all of the forms
and information applicable to this transaction required under the Xxxx-Xxxxx-
Xxxxxx Act (the "HSR Act") and will use commercially reasonable efforts to
respond promptly to any request by them for additional information.
14.7 EMPLOYEE MATTERS. Each party hereby consents to the other
making such offers of employment relating to the Florida Stations and the
California Station subject to the effectiveness of the LMAs between the parties
of even date herewith. ARS shall be responsible for all obligations or
liabilities to those employees not offered employment by Chancellor, and
Chancellor shall have no obligations with respect to the employees (herein
referred to as "Retained Employees"). Chancellor shall be responsible for all
obligations or liabilities to those employees not offered employment by ARS, and
ARS shall have no obligations with respect to the Retained Employees.
SECTION 15. CONDITIONS OF CLOSING BY CHANCELLOR
The obligations of Chancellor hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
15.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations
and
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warranties of ARS made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and complete in all
material respects as of the date hereof and on and as of the Closing Date as
if made on and as of that date, except for changes expressly permitted or
contemplated by the terms of this Agreement and except those given as of a
specified date.
15.2 COMPLIANCE WITH AGREEMENT. All of the terms, covenants and
conditions to be complied with and performed by ARS on or prior to the Closing
Date shall have been complied with or performed in all material respects.
15.3 THIRD PARTY CONSENTS AND APPROVALS; ESTOPPEL CERTIFICATES. ARS
has obtained all material third-party consents and approvals, if any, required
for the transfer or continuance, as the case may be, of the Contracts on
Schedule 2.4.4 (and contracts that would have been on Schedule 2.4.4 had they
been in existence on the date of this Agreement) and, if requested by Chancellor
prior to 45 days of the date of the Closing, such third parties have provided
estoppel certificates, non-disturbance agreements, and/or written clarifications
of the rights of Chancellor thereunder, all in form and substance reasonably
satisfactory to Chancellor.
15.4 CLOSING CERTIFICATES. Chancellor shall have received a
certificate, dated as of the Closing Date, from ARS, executed by an appropriate
officer of ARS to the effect of Sections 15.1 and 15.2.
15.5 GOVERNMENTAL CONSENTS.
(a) The FCC Consents shall have been issued by the FCC without
any conditions that would otherwise permit Buyers to terminate this Agreement
pursuant to Section 20.1(e), below, and each such FCC consent shall have become
a Final Order (as defined in Section 6.1).
(b) All applicable notification and waiting period requirements
under the HSR Act shall have been satisfied.
(c) All other material authorizations, consents, approvals, and
clearances of federal, state, or local Governmental Entities required to permit
the consummation of the transactions contemplated by this Agreement shall have
been obtained.
15.6 ADVERSE PROCEEDINGS. No injunction, order, decree or judgment
of any court, agency or other Governmental Entities shall have been rendered
against Chancellor or ARS which would render it unlawful, as of the Closing
Date, to effect the transactions contemplated by this Agreement in accordance
with its terms.
15.7 CLOSING DOCUMENTS. ARS shall have delivered or caused to be
delivered to Chancellor, on the Closing Date, all deeds, bills of sale,
endorsements, assignments and other
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instruments of conveyance and transfer consistent with the terms hereof and
otherwise reasonably satisfactory in form and substance to Chancellor,
effecting the sale, transfer, assignment and conveyance of the California
Station's Assets to Chancellor.
SECTION 16. CONDITIONS OF CLOSING BY ARS
The obligations of ARS hereunder are, at its option, subject to
satisfaction, at or prior to the Closing Date, of all of the following
conditions:
16.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. All representations
and warranties of Chancellor made in this Agreement or in any Exhibit, Schedule
or document delivered pursuant hereto, shall be true and complete in all
material respects as of the date hereof and on and as of the Closing Date as if
made on and as of that date, except for changes expressly permitted or
contemplated by the terms of this Agreement and except those given as of a
specified date.
16.2 COMPLIANCE WITH AGREEMENT. All the terms, covenants, and
conditions to be complied with and performed by Chancellor on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
16.3 THIRD PARTY CONSENTS AND APPROVALS; ESTOPPEL CERTIFICATES.
Chancellor has obtained all material third-party consents and approvals, if any,
required for the transfer or continuance, as the case may be, of the , Contracts
on Schedule 2.2.4 (and contracts that would have been on Schedule 2.2.4 had
they been in existence on the date of this Agreement) and, if requested by ARS
prior to 45 days of the date of the Closing, such third parties have provided
estoppel certificates, non-disturbance agreements, and/or written clarifications
of the rights of ARS thereunder, all in form and substance reasonably
satisfactory to ARS.
16.4 CLOSING CERTIFICATES. ARS shall have received a certificate,
dated as of the Closing Date, from Chancellor, executed by an appropriate
officer of Chancellor to the effect of Sections 16.1 and 16.2.
16.5 GOVERNMENTAL APPROVAL.
(a) The FCC Consents shall have been issued by the FCC and each
shall have become a Final Order (as defined in Section 6.1).
(b) All applicable notification and waiting period requirements
under the HSR Act shall have been satisfied.
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(c) All other material authorizations, consents, approvals, and
clearances of federal, state or local Governmental Entities required to permit
the consummation of the transactions contemplated by this Agreement shall have
been obtained.
16.6 ADVERSE PROCEEDINGS. No injunction, decree or judgment of any
court, agency or other governmental entities shall have been rendered against
Chancellor or ARS which would render it unlawful, as of the Closing date, to
effect the transactions contemplated by this Agreement in accordance with its
terms.
16.7 CLOSING DOCUMENTS. Chancellor shall have delivered or caused to
be delivered to ARS, on the Closing Date, all deeds, bills of sale,
endorsements, assignments and other instruments of conveyance and transfer
consistent with the terms hereof and otherwise reasonably satisfactory in form
and substance to ARS, effecting the sale, transfer, assignment and conveyance of
the Florida Station's Assets to ARS.
SECTION 17. CLOSING
17.1 TIME AND PLACE. A closing on the exchange and sale of the
California assets and the Florida Assets shall take place at 00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx on the date agreed on by the parties, said
date to be within ten days after the latter of (x) all necessary FCC action(s)
approving the transactions contemplated herein become Final Orders and (y) the
expiration or termination of the waiting period under the H.S.R. Act (the
"Closing Date").
17.2 DELIVERIES BY CHANCELLOR. At closing, Chancellor shall deliver
to ARS documents conveying title to the Florida Assets to ARS in substantially
the same manner as Chancellor received title to the Florida Assets from Omni, it
being the intention of the parties to vest in ARS all of Chancellor's rights,
title and interest in the Florida Assets received from Omni such that the
Florida Assets conveyed to ARS are substantially the same Florida Assets (in
terms of identity, quantity, quality, utility, value, nature of title conveyed,
etc.) as the Florida Assets that were conveyed to Chancellor by Omni pursuant to
the Florida Agreement. The deliveries from Chancellor to ARS shall include:
(a) An Assignment of Government Authorizations conveying the
Florida Licenses and all other governmental permits, licences and authorizations
used in the operation of the Florida Stations.
(b) A Xxxx of Sale for all items of personal property included
in the Florida Assets.
(c) Deeds conveying title to all Florida Real Estate owned in
fee simple by Chancellor and used in the operation of the Florida Stations.
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(d) Assignments of leases conveying all of Chancellor's right,
title and interest in all Florida Real Estate leased by Chancellor.
(e) All other conveyances, assignments and documents reasonably
necessary to vest in ARS title to the Florida Assets as contemplated in this
Agreement.
17.3 DELIVERY BY ARS. At Closing, ARS shall deliver to Chancellor by
wire transfer of available funds the cash payment specified in Section 3.2. In
addition, ARS shall deliver to Chancellor documents conveying title to the
California Assets in substantially the same manner as ARS received title to the
California Assets from FBC, it being the intention of the parties to vest in
Chancellor all of ARS's rights, title and interest in and to the California
Assets received from FBC such that the California Assets conveyed to Chancellor
are substantially the same California Assets (in terms of identity, quality,
quantity, utility, value, nature of title conveyed, etc.) as the California
Assets that were conveyed to ARS by FBC pursuant to the California Agreement.
The deliveries from ARS to Chancellor shall include:
(a) An Assignment of Government Authorizations conveying the
California Licenses and all other governmental permits, licences and
authorizations used in the operation of the California Station.
(b) A Xxxx of Sale for all items of personal property included
in the California Assets.
(c) Deeds conveying title to all Florida Real Estate owned in
fee simple by ARS and used in the operation of the California Station.
(d) Assignments of leases conveying all of ARS's right, title
and interest in all Florida Real Estate leased by ARS.
(e) All other conveyances, assignments and documents reasonably
necessary to vest in Chancellor's title to the California Assets as contemplated
in this Agreement.
17.4 If the Closing shall not have occurred before July 1, 1997
because ARS is unable to transfer the California Station's Assets or Chancellor
is unable to convey the Florida Station's Assets, the parties shall consummate
the sale of all the assets of the California Station or the Florida Stations
separately for a cash price of Seven Million Dollars ($7,000,000) and Forty
Million Dollars ($40,000,000) respectively.
SECTION 18. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
18.1 REPRESENTATIONS AND WARRANTIES OF CHANCELLOR. The
representations and warranties made in the Florida Agreement by Omni to
Chancellor with respect to the Florida
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Assets shall survive for the period specified in the Florida Agreement.
Chancellor shall enforce these representations and warranties in its name for
the benefit of ARS. No other representations or warranties shall survive
Closing.
18.2 REPRESENTATIONS AND WARRANTIES OF ARS. The representations and
warranties made in the California Agreement by FBC to ARS with respect to the
California Assets shall survive for the period specified in the California
Agreement. ARS shall enforce these representations and warranties in its name
for the benefit of Chancellor. No other representations or warranties shall
survive closing.
SECTION 19. INDEMNIFICATION
19.1 INDEMNIFICATION BY CHANCELLOR.
(a) Chancellor shall indemnify and hold ARS harmless from all
damages, losses, costs, suits, actions, causes of action and liabilities of any
nature whatsoever, including costs of suit and attorneys fees, arising out of
Chancellor's ownership or operation of the California Station and, the Florida
Retained Liabilities and the Chancellor covenants hereunder after the Closing
Date.
(b) Chancellor shall enforce, in its own name and for the
benefit of ARS, all indemnification provisions of the Florida Agreement.
19.2 INDEMNIFICATION BY ARS.
(a) ARS shall indemnify and hold Chancellor harmless from all
damages, losses, costs, suits, actions, causes of action and liabilities of any
nature whatsoever, including costs of suit and attorneys fees, arising out of
ARS's ownership or operation of the Florida Stations and the California Retained
Liabilities and ARS's covenants hereunder.
(b) ARS shall enforce, in its own name and for the benefit of
Chancellor, all indemnification provisions of the California Agreement.
19.3 LIMITATION ON REIMBURSEMENT.
(a) Neither Chancellor nor ARS shall be entitled to
reimbursement for damages incurred or suffered with respect to its respective
claims until and only to the extent that the aggregate damages with respect to
its respective claims to which it is otherwise entitled to reimbursement exceeds
$________________ (the "Indemnification Basket"). The individual parties shall
not be entitled to reimbursement for damages in excess of $_____________ in the
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aggregate.
(b) For all purposes of this Agreement, the amount of damages,
and the amount reimbursable with respect thereto, shall be reduced to the extent
of any insurance proceeds or other third party recovery received with respect to
such damages.
19.4 PROCEDURE FOR INDEMNIFICATION.
(a) If any claim or proceeding covered by Section 15 to
indemnify and hold harmless shall arise, the Party who seeks indemnification
(the "Indemnified Party") shall give written notice thereof to the other Party
(the "Indemnitor") promptly but in no event more than ten (10) days after the
Indemnified Party learns of the existence of such claim or proceeding. Any
claim for indemnification hereunder shall be accompanied by evidence
demonstrating the Indemnified Party's right or possible right to
indemnification, including a copy of all supporting documents relevant thereto.
After the Indemnitor acknowledges its obligation to defend against or settle any
such claim or proceeding, the Indemnitor shall not be liable to the Indemnified
Party under this Section 15 for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof;
provided, however, that the Indemnified Party shall have the right to employ
counsel to represent it if, in the Indemnified Party's sole judgment, it is
advisable for the Indemnified Party to be represented by separate counsel, in
which event the reasonable fees and expenses of such separate counsel shall be
paid by the Indemnified Party. The Parties shall fully cooperate in the defense
of each claim or proceeding and shall make available to each other all books or
records necessary or appropriate for such defense.
(b) The Indemnitor shall have the right to employ counsel
reasonably acceptable to the Indemnified Party to defend against the claim or
proceeding or to compromise, settle or otherwise dispose of the same; provided,
however, that no settlement or compromise shall be effected without the express
prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed; and, provided further, that if the Indemnified
Party does not consent to a BONA FIDE offer of settlement made by a third party
and the settlement involves only the payment of money, then the Indemnitor may,
in lieu of payment of that amount to such third party, pay that amount to the
Indemnified Party. After such payment to the Indemnified Party, the Indemnitor
shall have no further liability with respect to that claim or proceeding and the
Indemnified Party shall assume full responsibility for the defense, payment or
settlement of such claim or proceeding.
(c) If the Indemnitor fails to acknowledge in writing its
obligation to defend against or settle any claim or proceeding within twenty
(20) days after receiving notice of the claim or proceeding from the Indemnified
Party (or such shorter time specified in the notice as the circumstances of the
matter may dictate), the Indemnified Party shall be free to dispose of the
matter, at the expense of the Indemnitor, in any way that the Indemnified Party
deems in its best interest, subject to the Indemnitor's right subsequently to
contest through appropriate proceedings its obligation to provide
indemnification.
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(d) The Indemnitor shall be subrogated to all rights of the
Indemnified Party against any third party with respect to any claim for which
indemnification is paid by the Indemnitor to the extent of such payment.
SECTION 20. TERMINATION
20.1 RIGHT TO TERMINATE. This Agreement may be terminated at any time
prior to closing as follows:
(a) by the mutual consent of the parties;
(b) by written notice of (i) Chancellor to ARS if ARS breaches
in any material respect any of its representations or warranties or defaults in
any material respect in the observance or in the due and timely performance of
any of its covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of breach or
default served by Chancellor or (ii) ARS to Chancellor if Chancellor breaches in
any material respect any of its representations or warranties or default in any
material respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or default shall
not be cured within thirty (30) days of the notice of breach or default served
by ARS; but such notice and cure period shall not apply in the case of
Chancellor's or ARS's failure to consummate the transactions in accordance with
the terms and times specified in Section 22.11 of this Agreement.
(c) by Chancellor or ARS by written notice to the other, if a
court of competent jurisdiction or other Governmental Entity shall have issued
an order, decree or ruling or taken any other action (which order, decree or
ruling the parties hereto shall use their best efforts to lift), in each case
permanently restraining, permanently enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree, ruling or
other action shall have become final and nonappealable;
(d) by the party whose qualifications are not at issue, if, for
any reason, the FCC denies or dismisses any of the FCC Applications and the time
for reconsideration or court review under the Communications Act with respect to
such denial or dismissal has expired and there is not pending with respect
thereto a timely filed petition for reconsideration or request for review;
(e) by written notice of Chancellor to ARS or by ARS to
Chancellor, if the Closing shall not have been consummated on or before July
1, 1997; Notwithstanding the foregoing, no party hereto may effect a
termination hereof if such party is in material default or breach of this
Agreement.
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20.2 LIQUIDATED DAMAGES/SPECIFIC PERFORMANCE.
20.2.1 If this Agreement is terminated pursuant to Section
20.1(b) the parties agree and acknowledge that the parties will suffer damages
that are not practicable to ascertain. Accordingly, in the event this Agreement
is terminated pursuant to Section 20.1(b)(i), Chancellor shall be entitled to
the sum of Two Million Dollars ($2,000,000) as liquidated damages, payable
solely and exclusively by drawing upon the Escrow Deposit pursuant to the Escrow
Agreement. In the event this Agreement is terminated pursuant to Section
20.1(b)(ii), ARS shall be entitled to the sum of Three Hundred Fifty Thousand
Dollars ($350,000) as liquidated damages payable solely and exclusively by
drawing upon the Escrow Deposit pursuant to the Escrow Agreement. The parties
agree that the foregoing liquidated damages are reasonable considering all the
circumstances existing as of the date hereof and constitute the parties' good
faith estimate of the actual damages reasonably expected to result from the
termination of this Agreement pursuant to Section 20.1(b). Section 20.2.1 shall
be their sole and exclusive remedy if the Closing does not occur with respect to
any damages whatsoever as a result of any claim or cause of action asserted by
Sellers relating to or arising from breaches of the representations, warranties
or covenants contained in this Agreement and to be made or performed at or prior
to the Closing. Except for a termination pursuant to Section 20.1(b) (for which
the sole recourse of ARS, as the Seller of the California Station, or
Chancellor, as the Seller of the Florida Stations shall be as provided in this
Section 20.2.1 or pursuant to Section 20.1(a) (for which no party shall have any
liability to the other), the termination of this Agreement shall not relieve the
parties for any liability or obligation relating the their breaches of this
Agreement occurring prior to such termination.
20.2.2 The parties hereto agree that the broadcast stations
subject to this Exchange Agreement are unique and the harm to either ARS, as the
Florida Stations' Buyer, or Chancellor, as the California Station's Buyer from
breach by ARS, as the California Station's Seller, or Chancellor, as the Florida
Stations' Seller, cannot adequately be compensated by damages. Therefore, the
parties hereto agree that either party shall have the right to have this
Exchange Agreement specifically performed by the other party as a Seller as
follows:
(a) In the event of an uncured breach by ARS, as Seller of
the California Station or Chancellor, as Buyer of the California Station, shall
have the right to seek specific performance.
(b) In the event of an uncured breach by Chancellor, as
Seller of the Florida Station, ARS, as Buyer of the Florida Stations shall have
the right to seek specific performance. To the extent that Chancellor's breach
relates to a failure to enforce Chancellor's rights under the Florida
Agreement, ARS may seek specific performance compelling Chancellor to enforce
the Florida Agreement.
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SECTION 21. EXPENSES, TRANSFER TAXES, AND FEES
21.1 EXPENSES. Except as set forth in Sections 21.2 and, 21.3 below,
each party hereto shall be solely responsible for all costs and expenses
incurred by it in connection with the negotiation, preparation and performance
of and compliance with the terms of this Agreement.
21.2 TRANSFER TAXES AND SIMILAR CHARGES. All costs of transferring
the Florida Assets in accordance with this Agreement, including recordation,
transfer and documentary taxes and fees, an any excise, sales or use taxes,
shall be borne by ARS. All costs of transferring the California Station in
accordance with this Agreement, including recordation, transfer and documentary
taxes and fees, and any excise, sales or use taxes, shall be borne by
Chancellor. Chancellor and ARS shall, in good faith, attempt to calculate all
such taxes and fees prior to Closing and to settle their respective obligations
therefore on or before the Closing Date.
21.3 GOVERNMENTAL FILING OR GRANT FEES. Any filing or grant fees
imposed by any governmental authority the consent of which is required for the
consummation of the transactions contemplated hereby, including but not limited
to, the FCC, the FTC, and the Department of Justice shall be borne equally by
Chancellor and ARS.
SECTION 22. MISCELLANEOUS
22.1 RISK OF LOSS. Prior to Closing, risk of loss to the Florida
Stations shall be borne by Chancellor and risk of loss to the California Station
shall be borne by ARS.
22.2 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, whether by operation of law or otherwise; provided, however, that
without releasing the Parties from any of their obligations or liabilities
hereunder (a) nothing in this Agreement shall limit any Party's ability to sell
or transfer any or all of its respective assets (whether by sale of stock or
assets, or by merger, consolidation or otherwise) or its respective rights under
this Agreement without the consent of the other party, (b) nothing in this
agreement shall limit (i) Chancellor's ability to assign the California Licenses
(including the right to acquire the California Licenses at the Closing) to
Chancellor Broadcasting Licensee Company or any other subsidiary of Chancellor
without the consent of Sellers, or (ii) ARS's ability to assign the Florida
Licenses to American Radio Systems License Corp. or any other subsidiary of ARS
without the consent of Sellers, and (c) nothing in this Agreement shall limit a
party's ability to make a collateral assignment of its rights under this
Agreement to any institutional lender that provides funds to that party without
the consent of the other. Each party shall execute an acknowledgment of such
assignment(s) and collateral assignments in such forms as the other party or its
institutional lenders may from time to time reasonably request; provided,
however, that unless written notice is given to a party that any such collateral
assignment has been foreclosed upon, that party shall be entitled to deal
exclusively with the other party as to any matters arising under this Agreement
or any of the
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other agreements delivered pursuant hereto. In the event of such an
assignment, the provisions of this Agreement shall inure to the benefit of
and be binding on all parties' successors and assigns.
22.3 AMENDMENTS. No amendment, waiver of compliance with any
provision or condition hereof or consent pursuant to this Agreement shall be
effective unless evidenced by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, change, extension or
discharge is sought.
22.4 HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
22.5 GOVERNING LAW. The construction and performance of this
Agreement shall be governed by the laws of the State of Florida without giving
effect to the choice of law provisions thereof.
22.6 NOTICES. Any notice, demand or request required or permitted to
be given under the provisions of this Agreement shall be in writing and shall be
deemed to have been duly delivered and received on the date of personal delivery
or on the third day after deposit in the U.S. mail if mailed by registered or
certified mail, postage prepaid and return receipt requested; or on the day
after delivery to a nationally recognized overnight courier service if sent by
an overnight delivery service for next morning delivery, and shall be addressed
to the following addresses:
(a) In the case of ARS to:
American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Chairman
With a copy to:
Xxxxxxx X. Xxxxxx
Vice President and General Counsel
American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(b) In the case of Chancellor, to:
Xxxxxx Xxxxxx
President and Chief Executive Officer
Chancellor Radio Broadcasting Company
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00000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.A.
Xxx X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
and
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
and
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
22.7 SCHEDULES. The schedules and exhibits attached to this Agreement
are hereby made a part of this Agreement as if set forth in full herein.
22.8 ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties hereto with respect to its subject matter and supersedes all
negotiations, prior discussions, agreements, letters of intent, and
understandings, written or oral, relating to the subject matter of this
Agreement.
22.9 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
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22.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
22.11 BINDING AGREEMENT. The parities shall each have fifteen
(15) days from the execution of this Agreement to deliver all Schedules
associated herewith. The parties shall each have thirty (30) days from the
execution of this agreement to conduct an investigation that includes, but is
not limited to, reviewing the Schedules to this Exchange agreement, reviewing
the Stations' financial performance, real estate, contracts, environmental
compliance, equipment, studio, transmitter, engineering, litigation, licenses
and all other aspects of the Stations' assets and their ownership, performance
and operations reasonably examinable in such an investigation. If either
party's investigation reveals a material misrepresentation or a material
omission made by the Selling party, then the purchasing party shall give notice
to the defects to the selling party, who will then have fifteen (15) days to
cure the defects. If the selling party does not cure such a defect within the
allowed period, the affected purchasing party may terminate this Agreement by
giving notice to the other party within fifteen (15) days after the allowed cure
period without recourse to the selling party.
22.12 GOVERNING LAW. The obligations of Chancellor and ARS are
subject to applicable federal, state and local law, rules and regulations,
including, but not limited to the Communications Act and the rules and
regulations of the Federal Communications Commission. The construction and
performance of this Agreement will be governed by the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties have caused this Exchange Agreement to
be executed effective as of the date first written above.
CHANCELLOR RADIO AMERICAN RADIO
BROADCASTING COMPANY SYSTEMS CORPORATION
By: By:
-------------------------- -----------------------------
Xxxxxx Xxxxxx Xxxxxx X. Xxxxx
President President
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