SFX CONTRIBUTION AGREEMENT
THIS SFX CONTRIBUTION AGREEMENT is made and entered
into as of the 17th day of December, 1996, by and among LIBERTY ACQUISITION
SUBSIDIARY CORPORATION, a Delaware corporation ("Liberty 1"), LIBERTY
BROADCASTING OF MARYLAND II INCORPORATED, a Maryland corporation ("Liberty 2"
and, together with Liberty 1, the "Liberty Entities"), SFX BROADCASTING, INC.,
a Delaware corporation ("SFX") and ABS COMMUNICATIONS, L.L.C., a Virginia
limited liability company (the "Company").
W I T N E S S E T H:
WHEREAS, radio station WMXB-FM in Richmond, Virginia
(the "Station") is operated pursuant to a license issued to Liberty 1 by the
Federal Communications Commission (together with any successor agency or body,
the "FCC"); and
WHEREAS, all of the assets (other than the FCC
Licenses) used in connection with the operation of the Station
are owned by Liberty 2; and
WHEREAS, simultaneously with the execution of this
Agreement, SFX has entered into the Master Agreement (as defined) pursuant to
which SFX has agreed to contribute to the Company the Contributed Assets;
WHEREAS, on the Closing Date the Liberty Entities,
which are controlled by SFX, shall assign all of the Contributed Assets to SFX
and SFX shall contribute the Contributed Assets to the Company in accordance
with this Agreement; and
NOW, THEREFORE, in consideration of the mutual
representations, warranties, covenants and agreements, and upon the terms and
subject to the conditions contained herein, and intending to be fully bound
hereby, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. When used in this
Agreement, the following words or phrases shall have the following meanings:
"Agreement" shall mean this SFX Contribution
Agreement, as it may be amended, supplemented or otherwise modified from time
to time in accordance with the terms hereof.
"Amended Operating Agreement" shall mean that
certain amended and restated operating agreement governing the Company, dated
as of the date hereof.
"Closing" shall have the meaning assigned to such
term in Section 3.1 of this Agreement.
"Closing Date" shall mean the date on which the
Closing shall be deemed to occur and shall be the date of this Agreement.
"Communications Act" shall mean the Communications
Act of 1934, as amended, including as amended by the Telecommunications Act of
1996, and the rules, regulations and policies promulgated thereunder.
"Company" shall have the meaning assigned to such
term in the first paragraph of this Agreement.
"Contracts" shall mean all contracts, agreements, or
binding commitments or arrangements, written or oral, by which
any of the Contributed Assets may be bound.
"Contributed Assets" shall mean the FCC Licenses and
the Station Assets.
"Convertible Note Agreement" shall mean that certain
Convertible Note Agreement, dated as of even date herewith between the Company
and SFX.
"Disclosure Schedule" shall mean the separate
Disclosure Schedule attached to this Agreement regarding certain
representations and warranties made by the Liberty Entities or SFX as further
described in Article V or Article VI of this Agreement.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"FCC" shall have the meaning assigned to such term
in the recitals to this Agreement.
"FCC Licenses" shall mean the main transmitter
licenses for the Station together with each of the other
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consents, rights, licenses, permits and authorizations issued or granted by the
FCC for the operation of or used in connection with the ownership or operation
of the Station, together with any renewals or extensions thereof.
"Governmental Authority" shall mean a federal, state
or local court, legislature, governmental agency, commission or regulatory or
administrative authority or instrumentality.
"Law" shall mean applicable common law and any
statute, ordinance, code or other law, rule, permit, permit condition,
regulation, order, technical or other standard, requirement or procedure
enacted, adopted, promulgated, applied or followed by any Governmental
Authority or court.
"Lien" shall mean any security agreement or
financing statement filed with an appropriate Governmental Authority,
conditional sale or other title retention agreement, any lease, consignment or
bailment given for security purposes, any lien, mortgage, pledge, option,
encumbrance, adverse interest, constructive trust or other trust, claim,
attachment, exception to or defect in title or other ownership interest
(including, without limitation, reservations, rights of entry, possibilities of
reverter, encroachments, easements, rights of way, restrictive covenants,
leases and licenses) of any kind, which (i) creates or confers an interest in
property to secure payment or performance of a liability, obligation or claim,
or which retains or reserves such an interest for such purpose; (ii) grants to
any Person the right to purchase or otherwise acquire, or obligates any Person
to sell or otherwise dispose of, or otherwise results or may result in any
Person acquiring, any property or interest therein; (iii) restricts the
transfer of, or the exercise of any rights or the enjoyment of any benefits
arising by reason of ownership of, any property; or (iv) otherwise constitutes
an interest in or claim against property whether or not arising pursuant to any
Law, FCC License or Contract.
"Master Agreement" shall mean that certain Master
Richmond Station Group Agreement, dated as of even date herewith by and among
the Company, SFX and the other signatories party thereto.
"Permitted Liens" shall mean any Liens that do not
interfere materially with the ability to use, for the purpose currently being
used, the properties or assets subject thereto or affected thereby to the
extent granted by the Liberty Entities or SFX.
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"Person" shall mean an individual, corporation,
partnership, limited liability company, association, joint stock company,
Governmental Authority, business trust, unincorporated organization or other
legal entity.
"Purchase and Sale Agreement" shall mean that
certain Purchase and Sale Agreement, dated as of even date herewith by and
among the Company, EBF, Inc., EBF Partners and the other parties thereto.
"RCRA" shall mean the Resource Conservation and
Recovery Act, as amended.
"Real Estate Contracts" shall have the meaning
assigned to such term in Section 5.9 of this Agreement.
"SFX" shall mean SFX Broadcasting, Inc., a Delaware
corporation.
"Station" shall have the meaning assigned to such
term in the recitals to this Agreement.
"Station Assets" shall mean, with the exception of
the FCC Licenses, all assets, properties, rights, titles and privileges of
every kind, character and description, whether tangible, intangible, real,
personal or mixed, of whatever description and wherever located, used
exclusively in connection with the operation of the Station including, without
limitation, all additions, accessions, and substitutions made before the
Closing as permitted pursuant to the terms of this Agreement.
ARTICLE II
CONTRIBUTION
SECTION 2.1 Assignment and Contribution. (a)
Subject to FCC consent as provided in Section 3.1 hereof, immediately prior to
the Closing hereunder, the Liberty Entities and SFX shall enter into an
assignment and assumption agreement pursuant to which each of the Liberty
Entities shall assign to SFX and SFX shall accept and assume all of each
Liberty Entities' respective right, title, interest and obligations in and to
the Contributed Assets owned by it, free and clear of any and all Liens other
than Permitted Liens.
(b) Upon the terms and subject to the conditions
set forth in this Agreement, on the Closing Date, SFX shall
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contribute to the Company, and the Company shall accept from SFX the
Contributed Assets, free and clear of any and all Liens other than Permitted
Liens. In consideration for the Contributed Assets and together with the
conversion of the loans as contemplated under the Convertible Note Agreement
and SFX's other obligations under the Amended Operating Agreement, SFX's
Percentage Interest (as defined in the Amended Operating Agreement) in the
Company shall equal 96%.
SECTION 2.2 Payment of Taxes and Other Charges.
SFX shall pay, at the Closing or, if due thereafter, promptly when due, any and
all taxes (collectively, "Transfer Taxes") payable in connection with the
transfer of the Contributed Assets to the Company. Subject to the Company's
right of reasonable review and comment prior to filing, SFX shall prepare and
file any tax returns with respect to such Transfer Taxes.
ARTICLE III
CLOSING
SECTION 3.1 The Closing. The consummation of the
transactions contemplated herein (the "Closing") shall take place at the
offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, commencing at 9:00 a.m. local time concurrently with the
closing of the transactions contemplated under the Purchase and Sale Agreement.
Notwithstanding anything in this Agreement to the
contrary, the Closing shall not be consummated without prior FCC consent (the
"FCC Consents") with respect thereto having been obtained. It shall be a
condition precedent to the parties' obligation to consummate the Closing that
such consent shall have become a Final Order (defined below) without materially
adverse conditions. For purposes of this Agreement, a Final Order shall mean an
FCC consent or grant as to which the time within which any party in interest
other than the FCC may seek administrative or judicial reconsideration or
review of such consent or grant has expired and no petition for such
reconsideration or review has been timely filed with the FCC or with a court of
competent jurisdiction, and the normal time within which the FCC may review
such consent or grant on its own motion has expired and the FCC has not
undertaken such review. The parties shall, within ten (10) business days
following the date of this Agreement, file an appropriate application with the
FCC
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seeking its consent to the transactions contemplated hereunder and shall use
their best efforts to obtain such consent and a Final Order thereof promptly.
If the Closing would fall after the period permitted by such consent, the
parties shall file appropriate requests with the FCC for an extension of time
within which to complete the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following
representations and warranties to the Liberty Entities and SFX, each of which
is true and correct on the date hereof, shall be unaffected by any notice to
SFX other than in the Disclosure Schedule and shall survive the Closing to the
extent provided in the Master Agreement. Such representations and warranties
are subject to, and qualified by, any fact or facts disclosed in the
appropriate section of the Disclosure Schedule.
SECTION 4.1 Organization and Standing. The Company
is a limited liability company duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia, and, as of the date
hereof, the Company is duly qualified to do business and is in good standing in
the Commonwealth of Virginia.
SECTION 4.2 Authorization and Binding Obligation.
Subject to obtaining FCC consent as set forth in Section 3.1 hereof, the
Company has all necessary power and authority to enter into and perform this
Agreement and the transactions contemplated hereby, and the Company's
execution, delivery and performance of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on its part. This Agreement has been duly executed and delivered by the
Company and this Agreement constitutes, and the other agreements to be executed
in connection herewith will constitute, the valid and binding obligation of the
Company, enforceable in accordance with their terms, except as limited by laws
affecting creditors' rights or equitable principles generally.
SECTION 4.3 Litigation. There is no litigation,
administrative, arbitration or other proceeding, or petition, complaint or
investigation before any court or governmental body, pending against the
Company that would adversely affect the Company's ability to perform its
obligations pursuant to this Agreement or the agreements to be executed in
connection herewith.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE LIBERTY ENTITIES
The Liberty Entities hereby jointly (other than with
respect to Sections 5.1, 5.2, 5.3 and 5.5 which are made severally and not
jointly) make the following representations and warranties to the Company, each
of which is true and correct on the date hereof. Such representations and
warranties are subject to, and qualified by, any fact or facts disclosed in the
appropriate section of the Disclosure Schedule.
SECTION 5.1 Organization and Standing. (a) Liberty
1 is a corporation duly organized, validly existing and in good standing under
the laws of Delaware, and (b) Liberty 2 is a corporation duly organized,
validly existing and in good standing under the laws of Maryland and as of the
date hereof, Liberty 2 is duly qualified to do business and is in good standing
in the Commonwealth of Virginia.
SECTION 5.2 Authorization and Binding Obligation.
Subject to obtaining FCC consent as set forth in Section 3.1 hereof, each of
the Liberty Entities has all necessary power and authority to enter into and
perform its obligations under this Agreement and the transactions contemplated
hereby and the execution, delivery and performance of this Agreement by each of
the Liberty Entities, and the transactions contemplated hereby, have been duly
and validly authorized by all necessary action on the part of each of them.
This Agreement has been duly executed and delivered by each of the Liberty
Entities and this Agreement and the agreements to be executed in connection
herewith will constitute the valid and binding obligation of the Liberty
Entities enforceable in accordance with their terms, except as limited by laws
affecting the enforcement of creditor's rights or equitable principles
generally.
SECTION 5.3 Absence of Conflicting Agreements or
Required Consents. Except as set forth in Section 5.3 of the Disclosure
Schedule and except as set forth in Section 3.1 hereof, the execution, delivery
and performance of this Agreement by the Liberty Entities: (i) does not require
the consent of any third party; (ii) will not violate any applicable law,
judgment, order, injunction, decree, rule, regulation or ruling of any
governmental authority to which either of the Liberty Entities is a party or by
which either of them or the Contributed Assets is or are bound; (iii) will
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not, either alone or with the giving of notice or the passage of time, or both,
conflict with, constitute grounds for termination of or result in a breach of
the terms, conditions or provisions of, or constitute a default under, any
contract, agreement, instrument, license or permit to which either of the
Liberty Entities or the Contributed Assets is or are now subject; and (iv) will
not result in the creation of any Lien, charge or encumbrance on any of the
Contributed Assets.
SECTION 5.4 Litigation. There is no litigation,
administrative, arbitration or other proceeding, or petition, complaint or
investigation before any court or governmental body, pending against either of
the Liberty Entities that would adversely affect the ability of either of them
to perform its obligations pursuant to this Agreement or the agreements to be
executed in connection herewith.
SECTION 5.5 Title to Contributed Assets. Except as
set forth in Section 5.5 of the Disclosure Schedule, (a) Liberty 1 has good,
valid and marketable title to, or other legal right to use, all the FCC
Licenses, and (b) Liberty 2 has good, valid and marketable title to, or other
legal right to use all the Station Assets, in both cases free and clear of any
Lien other than Permitted Liens.
SECTION 5.6 Government Authorizations.
(a) Section 5.6 of the Disclosure Schedule contains
a true and complete list of the FCC Licenses and other material licenses,
permits or other authorizations from governmental and regulatory authorities
which are necessary for the lawful conduct of the business and operations of
the Station in the manner and to the full extent they are presently conducted.
Liberty 1 is the authorized legal holder of the FCC Licenses and other
licenses, permits and authorizations listed in said Section 5.6, none of which
is subject to any restrictions or condition which would limit in any respect
the full operation of the Station as now operated.
(b) Except as set forth in said Section 5.6 of the
Disclosure Schedule, there are no applications, complaints or proceedings
pending (and as of the Closing, material applications, complaints or
proceedings) or, to the best knowledge of either of the Liberty Entities,
threatened as of the date hereof by or before the FCC relating to the business
or operations of the Station other than applications, complaints or proceedings
which generally affect the broadcasting industry. The FCC Licenses listed in
said Section 5.6 are in good standing, are in full force and effect and are
unimpaired, and as of the Closing are unimpaired in
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any material respects, by any act or omission of Liberty 1 or any of its
respective officers, directors or employees; and the operation of the Station
is in accordance with the FCC Licenses. No proceedings are pending or, to the
knowledge of either of the Liberty Entities, are threatened with respect to the
FCC Licenses which may result in the revocation, adverse modification,
non-renewal or suspension of any of the FCC Licenses, the denial of any pending
applications for the Station, the issuance of any cease and desist order
against the Station, the imposition of any administrative sanctions by the FCC
with respect to the FCC Licenses which as of the date of this Agreement may
have an adverse effect on or which as of the Closing may have a material
adverse effect on the Company's ability to continue to operate the Station as
it is currently operated. Liberty 1 knows of no fact that would reasonably
preclude the FCC Licenses that are renewable in the ordinary course from being
renewed in the ordinary course. All material reports, forms and statements
required to be filed by Liberty 1 with the FCC with respect to the Station
since the grant of the last renewal of the FCC Licenses have been filed and are
substantially complete and accurate. Liberty 1 knows of no facts which, under
the Communications Act, or the existing rules and regulations of the FCC, would
disqualify Liberty 1 as an assignor of the FCC Licenses.
SECTION 5.7 Compliance with FCC Regulations. The
operation of the Station is and all of the Contributed Assets are in compliance
in all material respects with (i) all applicable engineering standards required
to be met under applicable FCC rules and (ii) all other applicable rules,
regulations, requirements and policies of the FCC, including, but not limited
to, ANSI Radiation Standards C95.1 - 1982 to the extent required to be met
under applicable FCC rules and regulations; and there are no existing claims
known to the Liberty Entities to the contrary.
SECTION 5.8 Taxes. Except as set forth in Section
5.8 of the Disclosure Schedule, the Liberty Entities have filed with respect to
the Station all applicable federal, state, local and foreign income, franchise,
sales, use, property, excise, payroll and other tax returns required by law and
has paid in full all taxes, estimated taxes, interest, assessments, and
penalties due and payable. All returns and forms which have been filed have
been true and correct in all material respects and no tax or other payment in a
material amount other than as shown on such returns and forms are required to
be paid and have been paid by either of the Liberty Entities. There are no
present disputes as to taxes of any nature payable by either of the Liberty
Entities
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relating to the Station which in any event could materially adversely affect
any of the Contributed Assets or the operation of the Station.
SECTION 5.9 Real Property.
(a) Section 5.9 to the Disclosure Schedule contains
a complete and accurate list of all real property constituting the Contributed
Assets and used by the Station and all Contracts relating exclusively to the
tower, transmitter, studio site and offices of the Station (collectively the
"Real Estate Contracts") and a summary of the applicable leases.
(b) The Real Estate Contracts listed in Section 5.9
constitute valid and binding obligations of the respective Liberty Entity (as
set forth therein) and, to the best knowledge of the Liberty Entities, of all
other persons purported to be parties thereto and are in full force and effect
as of the date hereof and will on the Closing Date constitute valid and binding
obligations of SFX and, to the best knowledge of each of the Liberty Entities,
of all other persons purported to be parties thereto and shall be in full force
and effect. Neither of the Liberty Entities is in default under any of such
Real Estate Contracts nor has either of them received or given written notice
of any default thereunder from or to any of the other parties thereto.
SECTION 5.10 Contracts. Section 5.10 of the
Disclosure Schedule lists all Contracts as of the date of this Agreement,
except (A) Contracts entered into in the ordinary course of business (i) of
less than three (3) months duration and which impose monetary obligations of
less than Five Thousand Dollars ($5,000) each or Fifty Thousand Dollars
($50,000) in the aggregate, (ii) for the sale or sponsorship of broadcast time
on the Station for cash, for which no prepayment has been received and with not
more than twelve (12) months remaining in their terms, or (iii) Contracts which
are currently scheduled to expire before the Closing Date and (B) time sales
agreements which (i) are on the Liberty Entities' standard form, (ii) are
terminable by the Liberty Entities within thirteen (13) weeks or less notice
without penalty, and (iii) provide for annual payments of fifty thousands
dollars ($50,000) or less.
SECTION 5.11 Status of Contracts. Except as noted
in Section 5.11 of the Disclosure Schedule, each of the Liberty Entities has
delivered to the Company true and complete copies of all Contracts, including
any and all
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amendments and other modifications to such Contracts. All Contracts are valid,
binding and enforceable by the Liberty Entity party thereto in accordance with
their respective terms, except as limited by laws affecting creditors' rights
or equitable principles generally. Each of the Liberty Entities has complied in
all material respects with all Contracts to which it is a party and is not in
default beyond any applicable grace periods under any of the Contracts, and no
other contracting party is in default under any of the Contracts.
SECTION 5.12 Environmental Matters. Neither of the
Liberty Entities has unlawfully disposed of any hazardous waste or hazardous
substance including Polychlorinated Byphenyls ("PCBs") in a manner which has
caused, or could cause, the Company to incur any liability under applicable law
in connection therewith; and the Liberty Entities warrant that the technical
equipment included in the Contributed Assets do not contain any PCBs which are
required by law to be removed and if any equipment does contain PCBs, that such
equipment is stored and maintained in compliance with applicable law. Each of
the Liberty Entities has complied in all material respects with all federal,
state and local environmental laws, rules and regulations applicable to the
Station and its operations, including but not limited to the FCC's guidelines
regarding RF radiation. To the best of the Liberty Entities' knowledge, no
hazardous waste has been disposed of by any other person, on the real estate
occupied by the Station or its transmitters. As used herein, the term
"hazardous waste" shall mean as defined in the RCRA and in the equivalent state
statute under the law of the state in which such real estate is located.
SECTION 5.13 Copyrights, Trademarks and Similar
Rights.
(a) Except for the FCC Licenses, Section 5.13 of
the Disclosure Schedule is a true and complete list of all copyrights,
trademarks, trade names, licenses, patents, permits, jingles and other similar
intangible property rights and interests applied for, issued to or owned by
either of the Liberty Entities or under which it is a licensee or franchisee
and used exclusively in the conduct of the business and operations of the
Station.
(b) All of such rights and interests are issued to
or owned by the Liberty Entity indicated on the Disclosure Schedule or if
licensed or franchised to either of the Liberty Entities to the best of such
Liberty Entity's knowledge, are valid and in good standing and uncontested. The
Liberty Entities have delivered or made available to the Company
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copies of all documents establishing such rights, licenses or other authority.
Neither of the Liberty Entities has received written notice nor has any
knowledge of any infringements or unlawful use of such property. The properties
listed in Section 5.13 of the Disclosure Schedule include all such properties
necessary to conduct in all respects the business and operations of the Station
as now conducted.
SECTION 5.14 Personnel Information.
(a) Section 5.14 of the Disclosure Schedule
contains a true and complete list of all persons employed exclusively by the
Station in connection with the operation of the Station, including a
description of material compensation arrangements (other than employee benefit
plans set forth in Section 5.14 of the Disclosure Schedule) and a list of other
terms of any and all agreements affecting such persons. Neither of the Liberty
Entities has received notification that any of the current key employees listed
in Section 5.14 of the Disclosure Schedule presently plan to terminate their
employment, whether by reason of the transactions contemplated hereby or
otherwise and the applicable Liberty Entity shall immediately notify the
Company upon receipt of any such notice.
(b) The Station is not subject to any Contract with
any labor organization, and the Station has not agreed to recognize any union
or other collective bargaining unit, nor has any union or other collective
bargaining unit been certified as representing any of their employees.
(c) Except as disclosed in Section 5.14 of the
Disclosure Schedule, each of the Liberty Entities has, with respect to the
Station, complied in all material respects with all laws relating to the
employment of labor, including, without limitation, ERISA and those laws
relating to wages, hours, collective bargaining, unemployment insurance,
workers' compensation, equal employment opportunity and payment and withholding
of taxes.
SECTION 5.15 Litigation. Except as set forth in
Section 5.15 of the Disclosure Schedule, the Station is not subject to any
judgment, award, order, writ, injunction, arbitration decision or decree
materially adversely affecting the conduct of the business of the Station or
the Contributed Assets, and to the best knowledge of each of the Liberty
Entities, there is no litigation or proceeding threatened against either of
them or the Station in any federal, state or local court, or before any
administrative agency or arbitrator
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(including, without limitation, any proceeding which seeks the forfeiture of,
or opposes the renewal of, the FCC Licenses), or before any other tribunal duly
authorized to resolve disputes, which would reasonably be expected to have any
material adverse effect upon the business, property, assets or condition
(financial or otherwise) of the Station or which seeks to enjoin or prohibit,
or otherwise questions the validity of, any action taken or to be taken
pursuant to or in connection with this Agreement. In particular, but without
limiting the generality of the foregoing, except as set forth in Section 5.6 of
the Disclosure Schedule, there are no applications, complaints or proceedings
pending or to the best knowledge of each of the Liberty Entities threatened
before the FCC or any other governmental organization with respect to the
business or operations of the Station other than applications, complaints or
proceedings which affect the broadcasting industry generally.
SECTION 5.16 Compliance With Laws. Except as set
forth in Section 5.16 of the Disclosure Schedule, neither of the Liberty
Entities has received any notice asserting any non-compliance by it in
connection with the business or operation of the Station with any applicable
statute, rule or regulation, federal, state or local. Neither of the Liberty
Entities nor the Station is in default with respect to any judgment, order,
injunction or decree of any court, administrative agency or other Governmental
Authority or any other tribunal duly authorized to resolve disputes in any
respect material to the transactions contemplated hereby. Each of the Liberty
Entities and the Station are in compliance in all material respects with all
laws, regulations and governmental orders applicable to the conduct of the
business and operations of the Station, the failure to comply with which would
have a material adverse effect on the business, operations or financial
condition of the Station, and the present use of the Contributed Assets do not
violate any of such laws, regulations or orders (other than immaterial
violations).
SECTION 5.17 Employee Benefit Plans. Section 5.17
of the Disclosure Schedule contains a true and complete list as of the date of
this Agreement of all employee benefit plans applicable to the employees at the
Station. The Station does not maintain any other employee benefit plan as the
term is defined in Section 3 of the Employee Retirement Income Security Act of
1984, as amended, applicable to the employees of the Station.
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SECTION 5.18 Accuracy of Information. No written
statements made by either of the Liberty Entities herein and no information
provided by either of the Liberty Entities herein or in the documents,
instruments or other written communications made or delivered directly by
either of the Liberty Entities to the Company covering the contribution of the
Contributed Assets contains any untrue statement of a material fact or omits a
material fact necessary to make the statements contained therein or herein not
misleading, and there is no fact known to either of the Liberty Entities which
relates to any information contained in any such written document, instrument
or communications which the applicable Liberty Entity has not disclosed to the
Company in writing which materially affects adversely the Station or the
Contributed Assets.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SFX
SFX hereby makes the following representations and
warranties to the Company, each of which shall be true and correct on the
Closing Date, and SFX makes the representations and warranties set forth in
Sections 6.1, 6.2, 6.3 and 6.4, each of which is true and correct on the
Closing Date and on the date hereof). Such representations and warranties are
subject to, and qualified by, any fact or facts disclosed in the appropriate
section of the Disclosure Schedule.
SECTION 6.1 Organization and Standing. SFX is a
corporation duly organized, validly existing and in good standing under the
laws of Delaware.
SECTION 6.2 Authorization and Binding Obligation.
Subject to obtaining FCC consent as set forth in Section 3.1 hereof, SFX has
all necessary power and authority to enter into and perform its obligations
under this Agreement and the transactions contemplated hereby and SFX's
execution, delivery and performance of this Agreement and the transactions
contemplated hereby, have been duly and validly authorized by all necessary
action on its part. This Agreement has been duly executed and delivered by SFX
and this Agreement and the agreements to be executed in connection herewith
will constitute the valid and binding obligation of SFX enforceable in
accordance with their terms, except as limited by laws affecting the
enforcement of creditor's rights or equitable principles generally.
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SECTION 6.3 Absence of Conflicting Agreements or
Required Consents. Except as set forth in Section 5.3 of the Disclosure
Schedule and except as set forth in Section 3.1 hereof, the execution, delivery
and performance of this Agreement by SFX: (i) does not require the consent of
any third party; (ii) will not violate any applicable law, judgment, order,
injunction, decree, rule, regulation or ruling of any governmental authority to
which SFX is a party or by which it or the Contributed Assets are bound; (iii)
will not, either alone or with the giving of notice or the passage of time, or
both, conflict with, constitute grounds for termination of or result in a
breach of the terms, conditions or provisions of, or constitute a default
under, any contract, agreement, instrument, license or permit to which SFX or
the Contributed Assets are now subject; and (iv) will not result in the
creation of any Lien, charge or encumbrance on any of the Contributed Assets.
SECTION 6.4 Litigation. There is no litigation,
administrative, arbitration or other proceeding, or petition, complaint or
investigation before any court or governmental body, pending against SFX that
would adversely affect its ability to perform its obligations pursuant to this
Agreement or the agreements to be executed in connection herewith.
SECTION 6.5 Title to Contributed Assets. On the
Closing Date, except as set forth in Section 5.5 of the Disclosure Schedule,
SFX will have (i) good, valid and marketable title to, or other legal right to
use, all the Station Assets, free and clear of any Lien other than Permitted
Liens, and (ii) the legal right to assign to the Company all the FCC Licenses,
free and clear of any Lien other than Permitted Liens.
SECTION 6.6 Government Authorizations.
(a) Section 5.6 of the Disclosure Schedule contains
a true and complete list of the FCC Licenses and other material licenses,
permits or other authorizations from governmental and regulatory authorities
which are necessary for the lawful conduct of the business and operations of
the Station in the manner and to the full extent they are presently conducted.
As of the Closing Date, SFX will be the authorized legal holder of the FCC
Licenses and other licenses, permits and authorizations listed in said Section
5.6, none of which is subject to any restrictions or condition which would
limit in any respect the full operation of the Station as now operated.
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(b) Except as set forth in Section 5.6 of the
Disclosure Schedule, there are no applications, complaints or proceedings
pending or, to the best of SFX's knowledge, threatened as of the date hereof by
or before the FCC relating to the business or operations of the Station other
than applications, complaints or proceedings which generally affect the
broadcasting industry. The FCC Licenses listed in said Section 5.6 are in good
standing, are in full force and effect and are unimpaired by any act or
omission of SFX or any of its respective officers, directors or employees; and
the operation of the Station is in accordance with the FCC Licenses. No
proceedings are pending or, to the knowledge of SFX, are threatened with
respect to the FCC Licenses which may result in the revocation, adverse
modification, non-renewal or suspension of any of the FCC Licenses, the denial
of any pending applications for the Station, the issuance of any cease and
desist order against the Station, the imposition of any administrative
sanctions by the FCC with respect to the FCC Licenses or which may adversely
affect the Company's ability to continue to operate the Station as it is
currently operated. SFX has no reason to believe that the FCC Licenses that are
normally renewable in the ordinary course will not be renewed in their ordinary
course. All material reports, forms and statements required to be filed by SFX
or any affiliate thereof with the FCC with respect to the Station since the
grant of the last renewal of the FCC Licenses have been filed and are
substantially complete and accurate. Subject to obtaining the required FCC
consents as contemplated by Section 3.1 hereof and subject to the assignment of
the Contributed Assets as contemplated in Section 2.1 hereof, there are no
facts which, under the Communications Act, or the existing rules and
regulations of the FCC, would disqualify SFX as an assignor of the Contributed
Assets.
SECTION 6.7 Compliance with FCC Regulations. The
operation of the Station and all of the Contributed Assets are in compliance in
all material respects with (i) all applicable engineering standards required to
be met under applicable FCC rules and (ii) all other applicable rules,
regulations, requirements and policies of the FCC, including, but not limited
to, ANSI Radiation Standards C95.1 - 1982 to the extent required to be met
under applicable FCC rules and regulations; and there are no existing claims
known to SFX to the contrary.
SECTION 6.8 Taxes. Except as set forth in Section
5.8 of the Disclosure Schedule, SFX or an applicable affiliate thereof has
filed with respect to the Station all applicable federal, state, local and
foreign income, franchise, sales,
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use, property, excise, payroll and other tax returns required by law and has
paid in full all taxes, estimated taxes, interest, assessments, and penalties
due and payable. All returns and forms which have been filed have been true and
correct in all material respects and no tax or other payment in a material
amount other than as shown on such returns and forms are required to be paid
and have been paid by SFX or its affiliates. There are no present disputes as
to taxes of any nature payable by SFX relating to the Station which in any
event could materially adversely affect any of the Contributed Assets or the
operation of the Station.
SECTION 6.9 Real Property.
(a) Section 5.9 to the Disclosure Schedule contains
a complete and accurate list of all real property constituting the Contributed
Assets and used by the Station and all Contracts relating exclusively to the
tower, transmitter, studio site and offices of the Station (collectively the
"Real Estate Contracts") and a summary of the applicable leases.
(b) On the Closing Date, the Real Estate Contracts
listed in Section 5.9 constitute valid and binding obligations of SFX and, to
the best of SFX's knowledge, of all other persons purported to be parties
thereto and constitute valid and binding obligations of SFX and, to the best of
SFX's knowledge, of all other persons purported to be parties thereto and shall
be in full force and effect. SFX is not in default under any of such Real
Estate Contracts nor has it received or given written notice of any default
thereunder from or to any of the other parties thereto.
SECTION 6.10 Contracts. Section 5.10 of the
Disclosure Schedule lists all Contracts as of the date of this Agreement,
except (A) Contracts entered into in the ordinary course of business (i) of
less than three (3) months duration and which impose monetary obligations of
less than Five Thousand Dollars ($5,000) each or Fifty Thousand Dollars
($50,000) in the aggregate, (ii) for the sale or sponsorship of broadcast time
on the Station for cash, for which no prepayment has been received and with not
more than twelve (12) months remaining in their terms, or (iii) Contracts which
are currently scheduled to expire before the Closing Date and (B) time sales
agreements which (i) are on SFX's (or any of its affiliates') standard form,
(ii) are terminable by SFX or any of its affiliates within thirteen (13) weeks
or less notice without penalty, and (iii) provide for annual payments of fifty
thousands dollars ($50,000) or less.
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SECTION 6.11 Status of Contracts. Except as noted
in Section 5.11 of the Disclosure Schedule, SFX (or an affiliate thereof) has
delivered to the Company true and complete copies of all Contracts, including
any and all amendments and other modifications to such Contracts. All Contracts
are valid, binding and enforceable by SFX in accordance with their respective
terms, except as limited by laws affecting creditors' rights or equitable
principles generally. SFX and its affiliates have complied in all material
respects with all Contracts and are not in default beyond any applicable grace
periods under any of the Contracts, and no other contracting party is in
default under any of the Contracts.
SECTION 6.12 Environmental Matters. Neither SFX
nor any affiliate thereof has in connection with the operation of the Station
unlawfully disposed of any hazardous waste or hazardous substance including
Polychlorinated Byphenyls ("PCBs") in a manner which has caused, or could
cause, the Company to incur any liability under applicable law in connection
therewith; and SFX warrants that the technical equipment included in the
Contributed Assets do not contain any PCBs which are required by law to be
removed and if any equipment does contain PCBs, that such equipment is stored
and maintained in compliance with applicable law. SFX has complied in all
material respects with all federal, state and local environmental laws, rules
and regulations applicable to the Station and its operations, including but not
limited to the FCC's guidelines regarding RF radiation. No hazardous waste has
been disposed of by SFX, and to the best of SFX's knowledge, no hazardous waste
has been disposed of by any other person, on the real estate occupied by the
Station or its transmitters. As used herein, the term "hazardous waste" shall
mean as defined in the RCRA and in the equivalent state statute under the law
of the state in which such real estate is located.
SECTION 6.13 Copyrights, Trademarks and Similar
Rights.
(a) Except for the FCC Licenses, Section 5.13 of
the Disclosure Schedule is a true and complete list of all copyrights,
trademarks, trade names, licenses, patents, permits, jingles and other similar
intangible property rights and interests applied for, issued to or owned by SFX
or under which such SFX is a licensee or franchisee and used exclusively in the
conduct of the business and operations of the Station.
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(b) All of such rights and interests are issued to
or owned by SFX or if licensed or franchised to SFX to the best of SFX's
knowledge, are valid and in good standing and uncontested. SFX has delivered or
made available to the Company copies of all documents establishing such rights,
licenses or other authority. SFX has received no written notice and has no
knowledge of any infringements or unlawful use of such property. The properties
listed in Section 5.13 of the Disclosure Schedule include all such properties
necessary to conduct in all respects the business and operations of the Station
as now conducted.
SECTION 6.14 Personnel Information.
(a) Section 5.14 of the Disclosure Schedule
contains a true and complete list of all persons employed exclusively by the
Station in connection with the operation of the Station, including a
description of material compensation arrangements (other than employee benefit
plans set forth in Section 5.14 of the Disclosure Schedule) and a list of other
terms of any and all agreements affecting such persons. SFX has not received
notification that any of the current key employees listed in Section 5.14 of
the Disclosure Schedule presently plan to terminate their employment, whether
by reason of the transactions contemplated hereby or otherwise and SFX shall
immediately notify the Company upon receipt of any such notice.
(b) The Station is not subject to any Contract with
any labor organization, and the Station has not agreed to recognize any union
or other collective bargaining unit, nor has any union or other collective
bargaining unit been certified as representing any of their employees.
(c) Except as disclosed in Section 5.14 of the
Disclosure Schedule, SFX has, with respect to the Station, complied in all
material respects with all laws relating to the employment of labor, including,
without limitation, ERISA and those laws relating to wages, hours, collective
bargaining, unemployment insurance, workers' compensation, equal employment
opportunity and payment and withholding of taxes.
SECTION 6.15 Litigation. Except as set forth in
Section 5.15 of the Disclosure Schedule, the Station is not subject to any
judgment, award, order, writ, injunction, arbitration decision or decree
materially adversely affecting the conduct of the business of the Station or
the Contributed Assets, and to the best of SFX's knowledge, there is no
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litigation or proceeding threatened against SFX or the Station in any federal,
state or local court, or before any administrative agency or arbitrator
(including, without limitation, any proceeding which seeks the forfeiture of,
or opposes the renewal of, the FCC Licenses), or before any other tribunal duly
authorized to resolve disputes, which would reasonably be expected to have any
material adverse effect upon the business, property, assets or condition
(financial or otherwise) of the Station or which seeks to enjoin or prohibit,
or otherwise questions the validity of, any action taken or to be taken
pursuant to or in connection with this Agreement. In particular, but without
limiting the generality of the foregoing, except as set forth in Section 5.6 of
the Disclosure Schedule, there are no applications, complaints or proceedings
pending or to the best of SFX's knowledge threatened before the FCC or any
other governmental organization with respect to the business or operations of
the Station other than applications, complaints or proceedings which affect the
broadcasting industry generally.
SECTION 6.16 Compliance With Laws. Except as set
forth in Section 5.16 of the Disclosure Schedule, SFX has not received any
notice asserting any non-compliance by it in connection with the business or
operation of the Station with any applicable statute, rule or regulation,
federal, state or local. Neither SFX nor the Station is in default with respect
to any judgment, order, injunction or decree of any court, administrative
agency or other Governmental Authority or any other tribunal duly authorized to
resolve disputes in any respect material to the transactions contemplated
hereby. SFX and the Station are in compliance in all material respects with all
laws, regulations and governmental orders applicable to the conduct of the
business and operations of the Station, the failure to comply with which would
have a material adverse effect on the business, operations or financial
condition of the Station, and the present use of the Contributed Assets do not
violate any of such laws, regulations or orders (other than immaterial
violations).
SECTION 6.17 Employee Benefit Plans. Section 5.17
of the Disclosure Schedule contains a true and complete list as of the date of
this Agreement of all employee benefit plans applicable to the employees at the
Station. The Station does not maintain any other employee benefit plan as the
term is defined in Section 3 of the Employee Retirement Income Security Act of
1984, as amended, applicable to the employees of the Station.
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SECTION 6.18 Accuracy of Information. No written
statements made by SFX herein and no information provided by SFX herein or in
the documents, instruments or other written communications made or delivered
directly by SFX to the Company covering the contribution of the Contributed
Assets contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained therein or herein not
misleading, and there is no fact known to SFX which relates to any information
contained in any such written document, instrument or communications which SFX
has not disclosed to the Company in writing which materially affects adversely
the Station or the Contributed Assets.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1 SFX's Condition to Closing. The
obligations of SFX hereunder are, at SFX's option, subject to satisfaction, on
the Closing Date, of each of the following conditions:
a. The representations and warranties of the Company set
forth in Article IV hereof being true and correct in all material respects on
the Closing Date.
b. The consummation of all of the transactions
contemplated by the Purchase and Sale Agreement shall have occurred or shall
occur contemporaneously with the Closing of the transactions contemplated by
this Agreement.
c. The FCC Consents shall have become a Final Order.
SECTION 7.2 The Company's Conditions to Closing. The
obligations of the Company hereunder are, at the Company's option, subject to
satisfaction, on the Closing Date, of each of the following conditions:
a. The representations and warranties of SFX set forth
in Article VI hereof are true and correct in all material respects; and
b. SFX shall have delivered the Contributed Assets to
the Company, free and clear of any and all liens and encumbrances.
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ARTICLE VIII
DOCUMENTS TO BE DELIVERED AT CLOSING
SECTION 8.1 SFX's Documents. At the Closing, SFX shall
deliver to the Company the following:
(a) With respect to the Contributed Assets, SFX shall
deliver an assignment and assumption agreement to effect the assignment of the
Contributed Assets to the Company, free and clear of any and all Liens other
than Permitted Liens.
(b) Certified resolutions of the Board of Directors
of SFX approving the execution and delivery of this Agreement;
(c) Governmental certificates showing that SFX is
in good standing in the Commonwealth of Virginia dated not
more than five (5) days before the Closing Date;
(d) Articles of Incorporation and Bylaws of SFX
certified by the secretary of SFX as of the Closing Date; and
(e) Such additional information and materials as
the Company shall have reasonably requested.
SECTION 8.2 The Company's Documents. At the
Closing, the Company shall deliver or cause to be delivered to SFX the
following:
(a) An assumption agreement assuming all of the
liabilities and obligations relating to the Contributed
Assets, effective as of the Closing Date.
(b) Governmental certificates from the Commonwealth
of Virginia showing that the Company is duly organized and in good standing in
the Commonwealth of Virginia dated not more than five (5) days before the
Closing Date;
(c) Certified resolutions of each of the members of
the Company approving the execution and delivery of this Agreement and each of
the other documents and agreements referred to herein and authorizing the
consummation of the transactions contemplated hereby and thereby;
(d) Articles of Organization and the Amended
Operating Agreement certified by the manager of the Company as
of the Closing Date; and
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(e) Such additional information and materials as
SFX shall have reasonably requested.
ARTICLE IX
OTHER PROVISIONS
SECTION 9.1 Severability. If any part or any
provision of this Agreement shall be invalid or unenforceable under applicable
law, said part or provisions shall be ineffective to the extent of such
invalidity or unenforceability only, without in any way affecting the remaining
provisions of this Agreement which shall be construed as if such invalid parts
or provisions had not been inserted, and such invalid or unenforceable
provisions shall become and be immediately amended and reformed to include only
the portions thereof as are enforceable by the court or such other body having
jurisdiction of this Agreement; and the parties agree that such portions as so
amended and reformed shall be valid and binding as though any wholly invalid or
unenforceable portion had not been included herein.
SECTION 9.2 Benefit and Assignment. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. No party may voluntarily or
involuntarily assign its interest under this Agreement without the prior
written consent of the other party; provided, the Liberty Entities shall have
the right, subject to applicable FCC requirements, to assign any and all of
their respective rights in this Agreement or any of the Contributed Assets to
any of their affiliates without the prior written consent of the Company so
long as SFX, on the Closing Date, shall contribute the Contributed Assets to
the Company as contemplated in this Agreement.
SECTION 9.3 Entire Agreement. This Agreement and
the Schedules hereto embody the entire agreement and understanding of the
parties hereto and supersede any and all prior agreements, arrangements and
understandings relating to the matters provided for in this Agreement other
than the Master Agreement. 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.
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SECTION 9.4 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.
SECTION 9.5 Governing Law. The construction and
performance of this Agreement shall be governed by the laws of the Commonwealth
of Virginia without giving effect to the choice of law provisions thereof.
SECTION 9.6 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 date of receipt, if mailed by
registered or certified mail, postage prepaid and return receipt requested, or
on the date of a stamped receipt, if sent by an overnight delivery service, and
shall be addressed to the following addresses, or to such other address as any
party may request:
To the SFX Broadcasting, Inc.
Liberty 000 Xxxx 00xx Xxxxxx
Xxxxxxxx Xxx Xxxx, XX 00000
or SFX: Attn: Xxxxxx Xxxxx
To the ABS Communications, L.L.C.
Company: 000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
SECTION 9.7 Counterparts. This Agreement may be
executed in one or more counterparts, each of which will be deemed an original
and all of which together shall constitute one and the same instrument.
SECTION 9.8 Survival of Representations and
Warranties; Indemnification. The survival period of the representations and
warranties set forth in this Agreement and the indemnification obligations of
SFX under this Agreement shall be set forth in, and controlled by, the Master
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date and year first above written.
ABS COMMUNICATIONS, L.L.C.
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
Title:
LIBERTY ACQUISITION SUBSIDIARY
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
LIBERTY BROADCASTING OF MARYLAND, II
INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
SFX BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
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