Exhibit 10.15
ASSET EXCHANGE AGREEMENT
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THIS ASSET EXCHANGE AGREEMENT (this "Agreement") is made as of August 31,
2000 among CUMULUS BROADCASTING INC., a Nevada corporation ("CBI"), CUMULUS
WIRELESS SERVICES, INC., a Nevada corporation ("CWS"), CUMULUS LICENSING CORP.,
a Nevada corporation ("CLC"; and together with CBI and CWS hereinafter referred
to collectively as "Cumulus"), the MYRTLE BEACH STATIONS TRUST (the "Trust"), a
South Carolina trust established pursuant to a certain Myrtle Beach Stations
Trust Agreement (the "Trust Agreement"), dated as of _________, 2000, between
NMG (as hereinafter defined) and the Trust and NEXTMEDIA OPERATING, INC., a
Delaware corporation ("NextMedia").
Recitals
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A. NextMedia Group II, Inc., a Delaware corporation ("NMG") acquired various
licenses, permits and authorizations with respect to various radio stations in
the Myrtle Beach, South Carolina radio market controlled by Pinnacle
Broadcasting Company, Inc., a Delaware corporation ("Pinnacle").
B. Principals of NMG have attributable interests in NextMedia Licensing, Inc.,
a Delaware corporation ("Licensing") which has acquired various stations in the
Myrtle Beach, South Carolina radio market controlled by Xxxxx Broadcasting
Group, L.P., a Delaware limited partnership ("Xxxxx").
C. The Communications Act of 1934, as amended, and the rules, regulations and
policies (collectively, the "Communication Laws") of the Federal Communications
Commission ("FCC") do not permit common ownership or control of all of the
Pinnacle and Xxxxx radio stations.
D. As a result of complying with the conditional grant from the FCC, the
Trust, pursuant to the Trust Agreement, acquired from NMG, radio Station WYAK-
FM, Surfside Beach, South Carolina (the "Trust Station") for the purpose of
holding and operating the same and selling such Stations to a FCC-approved buyer
or buyers.
E. CLC holds the licenses of the following radio broadcast stations (the
"Cumulus Stations") pursuant to certain authorizations issued by the FCC:
WQSL-FM, Jacksonville, NC
WXQR-FM, Jacksonville, NC
F. CBI and CWS own various assets used in the operation of the Cumulus
Stations.
G. Subject to the terms and conditions set forth herein, the parties desire to
exchange the Cumulus Stations Assets (as hereinafter defined) for the Trust
Station Assets (as hereinafter defined), plus Two Million US Dollars
($2,000,000.00). The parties intend the transaction contemplated by this
Agreement to be a like-kind exchange in accordance with the provisions of
Section 1031 of the
Internal Revenue Code of 1986, as amended (the "Code").
H. Effective as of the date hereof (the "TBA #1 Commencement Date"), Cumulus
and the Trust shall enter into a Time Brokerage Agreement ("TBA #1") with
respect to the Trust Station.
I. Effective as of the date hereof, (the "TBA #2 Commencement Date"), Cumulus
and NextMedia shall enter in a Time Brokerage Agreement ("TBA #2) with respect
to the Cumulus Stations.
Agreement
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NOW, THEREFORE, taking the foregoing into account, and in consideration of
the mutual covenants and agreements set forth herein, the parties, intending to
be legally bound, hereby agree as follows:
ARTICLE 1
EXCHANGE OF ASSETS/CASH PAYMENT
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1.1. Tax Free Exchange. The parties intend for this transaction to qualify
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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 Treasury Regulation (S)1.1031 (a)-2 (b); and (ii) non-
depreciable personal property and intangible personal property for other
property of a like kind.
1.2. Cumulus Stations Assets. On the terms and subject to the conditions
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hereof, on the Closing Date (as hereinafter defined), Cumulus shall assign,
transfer, convey and deliver to NextMedia, and NextMedia shall acquire from
Cumulus, all of the right, title and interest of CBI, CWS and CLC in and to all
of the assets, properties, interests and rights of whatsoever kind and nature,
real and personal, tangible and intangible, which are used exclusively in the
operation of the Cumulus Stations and specifically described in this Section 1.2
(the "Cumulus Stations Assets"), but excluding the Cumulus Excluded Assets (as
hereafter defined). These Cumulus Stations Assets include:
(a) all licenses, permits and other authorizations which are issued
by the FCC and/or any other governmental authority with respect to the Cumulus
Stations (the "Cumulus FCC Licenses") and described on Schedule 1.2(a),
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including any renewals or modifications thereof between the date hereof and
Closing;
(b) all equipment, electrical devices, antennas, cables, tools,
hardware, office furniture and fixtures, office materials and supplies,
inventory, motor vehicles, spare parts and other tangible personal property of
every kind and description which are used exclusively in the operation of the
Cumulus Stations and listed on Schedule 1.2(b), except any retirements or
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dispositions thereof made between the date hereof and Closing (as hereinafter
defined) in the ordinary course of business and consistent with past practices
of Cumulus (the "Cumulus Tangible Personal Property");
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(c) all Cumulus Time Sales Agreements and Cumulus Trade Agreements
(as each term is hereinafter defined), Cumulus Real Property Leases (as
hereinafter defined), and other contracts, agreements, and leases which are used
in the operation of the Cumulus Stations and listed on Schedule 1.2(c), together
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with all contracts, agreements, and leases made between the date hereof and
Closing in the ordinary course of business consistent with past practices,
subject to Sections 1.3, 2.4 and 11.1 (the "Cumulus Stations Contracts"). With
respect to Schedule 1.2(c), the parties have identified with an asterisk those
Cumulus Stations Contracts important to the continuation of the Cumulus
Stations' business as it is currently conducted (the "Material Cumulus Stations
Contracts");
(d) all rights in and to the Cumulus Stations' call letters and
Cumulus' rights in and to the trademarks, trade names, domain names, domain name
registrations, service marks, franchises, copyrights, computer software,
programs and programming material, jingles, slogans, logos, and other intangible
property which are used in the operation of the Cumulus Stations and listed on
Schedule 1.2(d) (the "Cumulus Intangible Property");
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(e) rights in and to all the files, documents, records, and books of
account (or copies thereof) relating exclusively to the operation of the Cumulus
Stations, including the Cumulus Stations' local public files, programming
information and studies, blueprints, technical information and engineering data,
advertising studies, marketing and demographic data, sales correspondence, lists
of advertisers, credit and sales reports, and logs, but excluding records
relating to the Cumulus Excluded Assets;
(f) all rights in and to manufacturers' and vendors' warranties
relating to items included in the Cumulus Stations Assets and all similar rights
against third parties relating to items included in the Cumulus Stations Assets;
(g) any real property which is used in the operation of the Cumulus
Stations (including any of Cumulus' appurtenant easements and improvements
located thereon) and described on Schedule 1.2(g) (the "Cumulus Real Property");
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and
(h) except for Cumulus Excluded Assets, such other assets,
properties, interests and rights that are used exclusively in connection with
the operation of the Cumulus Stations Assets or that are located as of the
Closing Date on the Cumulus Real Property.
The Cumulus Stations Assets shall be transferred to NextMedia free and
clear of liens, claims and encumbrances ("Liens") except for (i) NextMedia
Assumed Obligations (as hereinafter defined), (ii) liens for taxes not yet due
and payable and for which NextMedia receives a credit pursuant to Section 3.3
and (iii) such liens, easements, rights of way, building and use restrictions,
exceptions, reservations and limitations listed on Schedule 1.2 (collectively,
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"Cumulus Permitted Liens").
1.3. Cumulus Excluded Assets. Notwithstanding anything to the contrary
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contained herein, the Cumulus Stations Assets shall not include the following
assets along with all rights, title and interest therein (the "Cumulus Excluded
Assets"):
(a) all cash and cash equivalents of Cumulus, including without
limitation
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certificates of deposit, commercial paper, treasury bills, marketable
securities, asset or money market accounts and all such similar accounts or
investments;
(b) all accounts receivable or notes receivable arising in the
operation of the Cumulus Stations prior to Closing;
(c) all tangible and intangible personal property of Cumulus disposed
of or consumed in the ordinary course of business of Cumulus consistent with
past practices between the date of this Agreement and Closing;
(d) all Cumulus Stations Contracts that terminate or expire prior to
Closing in the ordinary course of business of Cumulus;
(e) the CBI, CWS and CLC names, corporate minute books, charter
documents, corporate stock record books and such other books and records as
pertain to the organization, existence or share capitalization of Cumulus,
duplicate copies of the records of the Cumulus Stations, and all records not
relating exclusively to the operation of the Cumulus Stations;
(f) contracts of insurance, and all insurance proceeds or claims made
thereunder;
(g) 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 CBI, CWS or CLC; and
(h) all rights, properties and assets described on the Excluded
Assets Schedule attached hereto as Schedule 1.3(h).
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1.4. Trust Station Assets. On the terms and subject to the conditions
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hereof, on the Closing Date, the Trust shall assign, transfer, convey and
deliver to Cumulus, and Cumulus shall acquire from the Trust, all of the right,
title and interest of the Trust in and to all of the assets, properties,
interests and rights of the Trust of whatsoever kind and nature, real and
personal, tangible and intangible, which are used in the operation of the Trust
Station and specifically described in this Section 1.4 (the "Trust Station
Assets"), but excluding the Trust Excluded Assets (as hereafter defined). The
Trust Station Assets include:
(a) all licenses, permits and other authorizations which are issued
by the FCC and/or any other governmental authority with respect to the Trust
Station (the "Trust FCC Licenses") and described on Schedule 1.4(a), including
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any renewals or modifications thereof between the date hereof and Closing;
(b) all equipment, electrical devices, antennas, cables, tools,
hardware, office furniture and fixtures, office materials and supplies,
inventory, motor vehicles, spare parts and other tangible personal property of
every kind and description which are used exclusively in the operation of the
Trust Station and listed on Schedule 1.4(b), except any retirements or
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dispositions thereof made between the date hereof and Closing in the ordinary
course of business and consistent with past
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practices of the Trust (the "Trust Tangible Personal Property");
(c) all Trust Time Sales Agreements and Trust Trade Agreements (as
each term is hereinafter defined), the Trust Real Property Leases (as
hereinafter defined), and other contracts, agreements, and leases which are used
in the operation of the Trust Station and listed on Schedule 1.4(c), together
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with all contracts, agreements, and leases made between the date hereof and
Closing in the ordinary course of business consistent with past practices,
subject to Sections 1.5, 2.2 and 11.2 (the "Trust Station Contracts"). With
respect to Schedule 1.4(c), the parties have identified with an asterisk those
Trust Station Contracts important to the continuation of the Trust Station's
business as it is currently conducted (the "Material Trust Station Contracts");
(d) all rights in and to the Trust Station's call letters and the
Trust's rights in and to the trademarks, trade names, domain names, domain name
registrations, service marks, franchises, copyrights, computer software,
programs and programming material, jingles, slogans, logos, and other intangible
property which are used exclusively in the operation of the Trust Station and
listed on Schedule 1.4(d) (the "Trust Intangible Property");
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(e) all rights in and to all the files, documents, records, and books
of account (or copies thereof) relating exclusively to the operation of the
Trust Station, including the Trust Station's local public files, programming
information and studies, blueprints, technical information and engineering data,
advertising studies, marketing and demographic data, sales correspondence, lists
of advertisers, credit and sales reports, and logs, but excluding records
relating to the Trust Excluded Assets; and
(f) all rights in and to manufacturers' and vendors' warranties
relating to items included in the Trust Station Assets and all similar rights
against third parties relating to items included in the Trust Station Assets;
(g) any real property which is used exclusively in the operation of
the Trust Station (including any of the Trust's appurtenant easements and
improvements located thereon) and described on Schedule 1.3(f) (the "Trust Real
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Property"); and
(h) except for Trust Excluded Assets, such other assets, properties,
interests and rights that are used exclusively in connection with the operation
of the Trust Station Assets or that are located as of the Closing Date on the
Trust Real Property.
The Trust Station Assets shall be transferred to Cumulus free and clear of Liens
except for (i) Cumulus Assumed Obligations (as hereinafter defined), (ii) liens
for taxes not yet due and payable and for which Cumulus receives a credit
pursuant to Section 3.3 and (iii) such liens, easements, rights of way, building
and use restrictions, exceptions, reservations and limitations listed on
Schedule 1.4 (collectively, "Trust Permitted Liens").
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1.5. Trust Excluded Assets. Notwithstanding anything to the contrary
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contained herein, the Trust Station Assets shall not include the following
assets along with all rights, title and interest therein (the "Trust Excluded
Assets"):
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(a) all cash and cash equivalents of the Trust including without
limitation certificates of deposit, commercial paper, treasury bills, marketable
securities, asset or money market accounts and all such similar accounts or
investments;
(b) all accounts receivable or notes receivable arising in the
operation of the Trust Station prior to Closing;
(c) all tangible and intangible personal property of the Trust
disposed of or consumed in the ordinary course of business of the Trust
consistent with past practices between the date of this Agreement and Closing;
(d) all Trust Station Contracts that terminate or expire prior to
Closing in the ordinary course of business of the Trust;
(e) the Trust's name, charter documents and such other books and
records as pertain to the organization and existence of the Trust, duplicate
copies of the records of the Trust Station, and all records not relating
exclusively to the operation of the Trust Station;
(f) contracts of insurance, and all insurance proceeds or claims made
thereunder;
(g) 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 the Trust; and
(h) any rights, properties or assets described on the Excluded Assets
Schedule attached hereto as Schedule 1.5(h).
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1.6 Cash Payment. Subject to the prorations and adjustments provided in
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Section 3.2, at Closing NextMedia shall pay Cumulus Two Million Dollars
($2,000,000.00) by wire transfer of funds.
ARTICLE 2
ASSUMPTION OF OBLIGATIONS
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2.1. Cumulus Assumed Obligations. Subject to TBA #1, on the Closing Date,
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Cumulus shall assume the obligations of the Trust (the "Cumulus Assumed
Obligations") arising after Closing under the Trust Station Contracts, including
without limitation, all agreements for the sale of advertising time on the Trust
Station for cash in the ordinary course of business consistent with past
practices ("Trust Time Sales Agreements") and all agreements for the sale of
advertising time on the Trust Station for non-cash consideration ("Trust Trade
Agreements").
2.2. Trust Retained Obligations. Cumulus does not assume or agree to
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discharge or perform and will not be deemed by reason of the execution and
delivery of this Agreement or any agreement, instrument or document delivered
pursuant to or in connection with this Agreement or
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otherwise by reason of the consummation of the transactions contemplated hereby,
to have assumed or to have agreed to discharge or perform, any liabilities,
obligations or commitments of the Trust of any nature whatsoever whether
accrued, absolute, contingent or otherwise and whether or not disclosed to
Cumulus, other than the Cumulus Assumed Obligations (the "Trust Retained
Obligations").
2.3. NextMedia Assumed Obligations. Subject to TBA #2, on the Closing
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Date, NextMedia shall assume the obligations of Cumulus (the "NextMedia Assumed
Obligations") arising after Closing under the Cumulus Stations Contracts,
including without limitation all agreements for the sale of advertising time on
the Cumulus Stations for cash in the ordinary course of business consistent with
past practices ("Cumulus Time Sales Agreements") and all agreements for the sale
of advertising time on the Cumulus Stations for non-cash consideration ("Cumulus
Trade Agreements").
2.4. Cumulus Retained Obligations. NextMedia does not assume or agree to
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discharge or perform and will not be deemed by reason of the execution and
delivery of this Agreement or any agreement, instrument or document delivered
pursuant to or in connection with this Agreement or otherwise by reason of the
consummation of the transactions contemplated hereby, to have assumed or to have
agreed to discharge or perform, any liabilities, obligations or commitments of
Cumulus of any nature whatsoever whether accrued, absolute, contingent or
otherwise and whether or not disclosed to NextMedia, other than the NextMedia
Assumed Obligations (the "Cumulus Retained Obligations").
ARTICLE 3
DEPOSITS AND ADJUSTMENTS
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3.1. Deposit. On or before September 15, 2000 (with no Cure Period (as
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hereinafter defined), NextMedia (on behalf of NextMedia and the Trust) and
Cumulus each shall deposit an irrevocable letter of credit in the amount of One
Hundred Thousand US Dollars ($100,000.00) (respectively, the "NextMedia Deposit"
and the "Cumulus Deposit") with Media Services Group, Inc. (the "Escrow Agent")
pursuant to the Escrow Agreements (the "Escrow Agreement") appended hereto as
Exhibit 3.1 A and Exhibit 3.1 B. If this Agreement is terminated by Cumulus due
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to NextMedia's and/or the Trust's material failure to consummate the Closing on
the Closing Date in accordance with this Agreement or if this Agreement is
otherwise terminated by Cumulus pursuant to Section 19.1(b), the NextMedia
Deposit may, at Cumulus' option, be disbursed to Cumulus as payment of
liquidated damages pursuant to Section 19.2. If this Agreement is terminated by
NextMedia and /or the Trust due to Cumulus' material failure to consummate the
Closing on the Closing Date in accordance with this Agreement or if this
Agreement is otherwise terminated by NextMedia and/or the Trust pursuant to
Section 19.1 (c), the Cumulus Deposit may, at NextMedia's option, be disbursed
to NextMedia as payment of liquidated damages pursuant to Section 19.2. If this
Agreement is terminated for any other reason, the NextMedia Deposit shall be
disbursed to NextMedia, and the Cumulus Deposit shall be disbursed to Cumulus.
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3.2. Prorations and Adjustments. Subject to TBA #1 and TBA #2, and except
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as otherwise provided herein, all deposits, reserves and prepaid and deferred
income and expenses arising from the conduct of the business and operations of
the Cumulus Stations and the Trust Station shall be prorated in accordance with
generally accepted accounting principles ("GAAP") as of 11:59 p.m. on the date
immediately preceding the Closing Date. Such prorations shall include, without
limitation, all ad valorem, real estate and other property taxes (but excluding
transfer taxes which shall be paid as set forth in Section 16.1), business and
license fees, music and other license fees (including any retroactive
adjustments thereof), utility expenses, amounts due or to become due under
contracts, rents, lease payments and similar prepaid and deferred items. Real
estate taxes shall be apportioned on the basis of taxes assessed for the
preceding year, with a reapportionment, if any, as soon as the new tax rate and
valuation can be ascertained. Except as otherwise provided herein, the
prorations and adjustments contemplated by this Section 3.2, to the extent
practicable, shall be made on the Closing Date. As to those prorations and
adjustments not capable of being ascertained on the Closing Date, an adjustment
and proration shall be made within ninety (90) calendar days of the Closing
Date. In the event of any disputes between the parties as to such adjustments,
the amounts not in dispute shall nonetheless be paid at the time provided herein
and such disputes shall be determined by an independent certified public
accountant mutually acceptable to the parties, and the fees and expenses of such
accountant shall be paid one-half by Cumulus and one-half by the Trust.
3.3. Allocation.
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(a) The values of the assets comprising the Cumulus Stations Assets
and the Trust Station Assets shall be determined by an appraisal (the
"Appraisal") prepared by Broadcast Investment Analysts (whose fees shall be
borne equally between Cumulus and the Trust). Prior to Closing, the parties
hereto shall prepare and exchange schedules which, for each party to this
Agreement, show the respective Cumulus Stations Assets and Trust Station Assets
to be conveyed and acquired at Closing under this Agreement.
(b) Before or after Closing, the parties hereto shall prepare
schedules (the "Exchange Group Schedules") which (i) divide the Trust Station
Assets and the Cumulus Stations Assets into both "exchange groups" (in
accordance with the like-kind exchange rules covering exchanges of multiple
properties under Treasury Regulation (S) 1.1031(j)-1) and residual groups and
(ii) set forth the total value of the assets making up each such exchange group
and residual group (based upon the Appraisal). For tax purposes, the parties
shall report the exchange of assets under this Agreement consistently with the
Exchange Group Schedules and the Appraisal, including without limitation filing
when due IRS Form 8594 and (if applicable) IRS Form 8824 on the basis of the
Exchange Group Schedules and the Appraisal.
ARTICLE 4
CLOSING
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4.1. Closing. The consummation of the exchange of assets under this
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Agreement (the
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"Closing") shall occur on a date (the "Closing Date") and at a time and place
mutually agreeable to the parties hereto within ten (10) days after FCC Consent
(as hereinafter defined) becomes a Final Order, subject to satisfaction or
waiver of the conditions to Closing contained herein (other than those to be
satisfied at Closing). Prior to Closing the parties shall hold a pre-closing
conference at a time and place mutually agreeable to the parties hereto, at
which the parties shall provide (for review only) all documents to be delivered
at Closing under this Agreement, each duly executed but undated, and otherwise
confirm their ability to timely consummate the Closing.
ARTICLE 5
GOVERNMENTAL CONSENTS
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Closing is subject to and conditioned upon (i) prior FCC consent (the "FCC
Consent") to the assignment of the Cumulus FCC Licenses to NextMedia and the
Trust FCC Licenses to Cumulus, and (ii) the FCC action granting its consent
becoming a "Final Order", in essence, an action unappealable by virtue of (x)
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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.
5.1. FCC. Within ten (10) business days after the execution of this
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Agreement, each of Cumulus, the Trust and NextMedia, as applicable, shall file
applications with the FCC (the "FCC Application") requesting the FCC Consent.
Each of Cumulus, the Trust and NextMedia, as applicable, shall diligently
prosecute the FCC Application and otherwise use their best efforts to obtain the
FCC Consent as soon as possible; provided, however, that no party shall be under
any obligation to contest any adverse condition imposed by the FCC on the grant
of the FCC Application or any hearing designation of the FCC Application.
5.2. INTENTIONALLY OMITTED]
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5.3. General. Each of Cumulus, the Trust and NextMedia, as applicable,
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shall notify each other of all documents filed with or received from any
governmental agency with respect to this Agreement or the transactions
contemplated hereby. Each of Cumulus, the Trust and NextMedia shall furnish each
other with such information and assistance as such the other may reasonably
request in connection with their preparation of any governmental filing
hereunder. If Cumulus, the Trust and/or NextMedia becomes aware of any fact
relating to it which would prevent or delay the FCC Consent, such party shall
promptly notify any other party thereof and take such reasonable steps as
necessary to remove such impediment.
ARTICLE 6
TIME BROKERAGE AGREEMENT
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6.1 Trust Station Agreement. On the date hereof, the Trust and Cumulus
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shall enter into TBA #1 substantially in the form attached hereto as Exhibit
6.1.
6.2 Cumulus Stations Agreement. On the date hereof, NextMedia and Cumulus
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shall enter into TBA #2 substantially in the form attached hereto as Exhibit
6.2.
ARTICLE 7
COLLECTION OF ACCOUNTS RECEIVABLE
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7.1. Trust Accounts Receivable. All accounts receivable arising prior to
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the TBA #1 Commencement Date in connection with the operation of the Trust
Station, including but not limited to accounts receivable for advertising
revenues for programs and announcements performed prior to the TBA #1
Commencement Date and other broadcast revenues for services performed prior to
the TBA #1 Commencement Date, shall remain the property of the Trust (the "Trust
Accounts Receivable") and Cumulus shall not acquire any right or interest
therein. For a period of six months from the TBA #1 Commencement Date (the
"Trust Collection Period"), Cumulus shall collect the Trust Accounts Receivable
in the normal and ordinary course of Cumulus' business and shall apply all such
amounts collected to the debtor's oldest account receivable first. Cumulus'
obligation shall not extend to the institution of litigation, employment of
counsel or a collection agency or any other extraordinary means of collection.
During the Trust Collection Period, neither the Trust, nor its agents shall make
any direct solicitation of any such account debtor for collection purposes or
institute litigation for the collection of amounts due. Any amounts relating to
the Trust Accounts Receivable that are paid directly to the Trust shall be
retained by the Trust. Within thirty (30) calendar days after the end of each
month, Cumulus shall make a payment to the Trust equal to the amount of all
collections of Trust Accounts Receivable during the preceding month. At the end
of the Trust Collection Period, any remaining Trust Accounts Receivable shall be
returned to the Trust for collection.
7.2. Cumulus Accounts Receivable. All accounts receivable arising prior to
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the TBA #2 Commencement Date in connection with the operation of the Cumulus
Stations, including but not limited to accounts receivable for advertising
revenues for programs and announcements performed prior to the TBA #2
Commencement Date and other broadcast revenues for services performed prior to
the TBA #2 Commencement Date, shall remain the property of Cumulus (the "Cumulus
Accounts Receivable") and NextMedia shall not acquire any right or interest
therein. For a period of six (6) months from the TBA #2 Commencement Date (the
"Cumulus Collection Period"), NextMedia shall collect the Cumulus Accounts
Receivable in the normal and ordinary course of NextMedia's business and shall
apply all such amounts collected to the debtor's oldest account receivable
first. NextMedia's obligation shall not extend to the institution of litigation,
employment of counsel or a collection agency or any other extraordinary means of
collection. During the Cumulus Collection Period, neither Cumulus, nor its
agents shall make any direct solicitation of any such account debtor for
collection purposes or institute litigation for the collection of amounts due.
Any amounts relating to the Cumulus Accounts Receivable that are paid directly
to Cumulus shall be retained by Cumulus.
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Within thirty (30) calendar days after the end of each month, NextMedia shall
make a payment to Cumulus equal to the amount of all collections of Cumulus
Accounts Receivable during the preceding month. At the end of the Cumulus
Collection Period, any remaining Cumulus Accounts Receivable shall be returned
to Cumulus for collection.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF CUMULUS
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Each of CBI, CWS and CLC makes the following representations and warranties to
NextMedia and the Trust, each of which is true and correct as of the date
hereof, and shall be true and correct as of the Closing Date, and shall be
unaffected by any investigation heretofore or hereafter made by any party. Each
of the following representations and warranties are subject to exceptions set
forth in full and complete disclosure statements corresponding to the numbered
paragraphs in this Article 8 ("Disclosure Statements"). Cumulus has delivered
its Disclosure Statements to NextMedia and the Trust prior to the date of this
Agreement.
8.1. Organization. Each of CBI, CWS and CLC is duly organized, validly
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existing and in good standing under the laws of the jurisdiction of its
organization, and is qualified to do business in each jurisdiction in which the
Cumulus Stations Assets and the Trust Station Assets are located. Each has the
requisite corporate power and authority to execute and deliver this Agreement
and all of the other agreements and instruments to be executed and delivered by
Cumulus pursuant hereto (collectively, the "Cumulus Ancillary Agreements"), to
consummate the transactions contemplated hereby and thereby and to comply with
the terms, conditions and provisions hereof and thereof.
8.2. Authorization. The execution, delivery and performance of this
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Agreement and the Cumulus Ancillary Agreements by each of CBI, CWS and CLC have
been duly authorized and approved by all necessary action and do not require any
further authorization or consent of CBI, CWS or CLC. This Agreement is, and
each Cumulus Ancillary Agreement when executed and delivered by Cumulus and the
other parties thereto will be, a legal, valid and binding agreement of CBI, CWS
and CLC enforceable in accordance with its respective terms, except in each case
as such enforceability may be limited by bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting or limiting the enforcement of
creditors' rights generally and except as such enforceability is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
8.3. No Conflicts. Neither the execution and delivery by CBI, CWS or CLC
------------
of this Agreement and the Cumulus Ancillary Agreements or the consummation by
CBI, CWS or CLC of any of the transactions contemplated hereby or thereby nor
compliance by CBI, CWS or CLC with or fulfillment by CBI, CWS or CLC of the
terms, conditions and provisions hereof or thereof will: (i) conflict with any
of its organizational documents or any law, judgment, order, or decree to which
it is subject or, except as set forth on Schedule 1.2(c), any Cumulus Stations
---------------
Contract; or (ii) require the approval, consent, authorization or act of, or the
making by CBI, CWS or CLC of any
11
declaration, filing or registration with, any third party or any foreign,
federal, state or local court, governmental or regulatory authority or body,
except the FCC Consent.
8.4. FCC Licenses. Schedule 1.2 (a) lists (i) all licenses, permits and
------------ ----------------
other authorizations (including all broadcast auxiliary licenses, construction
permits and all grants of Special Temporary Authority ("STA")) issued by the FCC
relating to the Cumulus Stations as of the date of this Agreement and (ii) all
licenses, permits or authorizations issued to CLC by any other governmental
entities which are material to the business or operations of the Cumulus
Stations and held by CLC as of the date of this Agreement. Such licenses,
permits and authorizations, and all applications for modification, extension or
renewal thereof or for new licenses, permits, permissions or authorizations
applicable to the business or operations of the Cumulus Stations are
collectively referred to herein as the Cumulus FCC Licenses (as further defined
in Section 1.2(a)), each of which is in full force and effect. To Cumulus'
Knowledge (defined below), the Cumulus Stations have been operated in all
material respects in accordance with the terms of the Cumulus FCC Licenses. All
towers and other structures used in the operation of the Cumulus Stations or the
Cumulus Stations Assets or located on the Cumulus Real Property are obstruction
marked and lighted to the extent required by, and in accordance with the rules
and regulations of the Federal Aviation Administration (the "FAA"), the FCC and
other governmental entities. Appropriate notifications to the FAA and
registrations with the FCC have been filed for such towers where required.
Except for proceedings affecting the radio broadcast industry generally, there
are no proceedings pending or, to Cumulus' Knowledge, threatened with respect to
Cumulus' ownership or operation of the Cumulus Stations which reasonably may be
expected to result in the revocation, material adverse modification, non-renewal
or suspension of any of the Cumulus FCC Licenses, the denial of any pending
applications for the Cumulus FCC Licenses, the issuance against Cumulus of any
cease and desist order, or the imposition of any administrative actions by the
FCC or any other governmental entity with respect to the Cumulus FCC Licenses,
or which reasonably may be expected to adversely affect the Cumulus Stations'
ability to operate as currently operated or NextMedia's ability to obtain
assignment of the Cumulus FCC Licenses. Except as set out in Schedule 1.2(a)
---------------
hereto, and with the exception of such temporary reduced power operations as are
necessary for routine maintenance, the Cumulus Stations operates (A) in
conformity with the Cumulus FCC Licenses and (B) within the operating power
tolerances specified in 47 C.F.R. (S)73.1560(b) and 47 C.F.R. (S)73.1560(a)(1).
To Cumulus' Knowledge, no other broadcast Stations or radio communications
facility is causing interference to the Cumulus Stations' transmissions beyond
that which is allowed by FCC rules and regulations. Cumulus has all necessary
authority to use the call signs set forth on Schedule 1.2 (a). For purposes of
----------------
this Agreement, "Knowledge" means that the applicable representation or warranty
is deemed to have been made following due inquiry of appropriate officers and
directors and records and investigation of publicly available records.
8.5. Taxes. Each of CBI, CWS and CLC has, in respect of the Cumulus
-----
Stations' business, filed all foreign, federal, state, county and local income,
excise, property, sales, use, franchise and other tax returns and reports which
are required to have been filed by it under applicable law and has paid all
taxes which have become due pursuant to such returns or pursuant to any
assessments which have become payable.
12
8.6. Personal Property. Schedule 1.2(b) contains a list of all material
----------------- ---------------
items of Cumulus Tangible Personal Property included in the Cumulus Stations
Assets. Cumulus has title to the Cumulus Tangible Personal Property free and
clear of Liens other than Cumulus Permitted Liens.
8.7. Real Property. Schedule 1.2(g) contains a description (including the
------------- ---------------
street address and legal description) of all Cumulus Real Property included in
the Cumulus Stations Assets. Schedule 1.2(g) includes a description of each real
---------------
property lease or similar agreement included in the Cumulus Stations Assets (the
"Cumulus Real Property Leases").Cumulus Real Property Leases provide access to
the Cumulus Stations' facilities. To Cumulus' Knowledge, the Cumulus Real
Property is not subject to any suit for condemnation or other taking by any
public authority.
8.8. Contracts. Each of the Cumulus Stations Contracts (including without
---------
limitation each of the Cumulus Real Property Leases) is in effect and is binding
upon Cumulus and, to Cumulus's Knowledge, the other parties thereto (subject to
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally). Each of CBI, CWS and
CLC has performed its obligations under each of the Cumulus Stations Contracts
in all material respects, and is not in material default thereunder, and to
Cumulus's Knowledge, no other party to any of the Cumulus Stations Contracts is
in default thereunder in any material respect.
8.9. Environmental. On the date of this Agreement, except as previously
-------------
revealed to NextMedia:
(a) To Cumulus' Knowledge, the Cumulus Real Property used in
connection with the Cumulus Stations and the business and operations thereon is,
and except with respect to any predecessor or prior owner, operator or lessee
(each a "Predecessor"), in substantial compliance with all applicable federal,
state and local statutes, codes, rules, ordinances or regulations relating to
the environment, natural resources and public or employee health and safety
(collectively, the "Environmental Laws").
(b) No judicial or administrative proceedings are pending or, to
Cumulus' Knowledge, threatened against Cumulus or any of the Cumulus Real
Property used in connection with the Cumulus Stations, alleging the violation of
or seeking to impose liability pursuant to any Environmental Law. No notice or
claim from any governmental entity or other person has been given to Cumulus
claiming violation of or alleging any liability under remediation of any
Environmental Laws in connection with any of the Cumulus Real Property used in
connection with the Cumulus Stations or operations thereon.
(c) To Cumulus' Knowledge, there are no facts, circumstances or
conditions on the Cumulus Real Property or the business or operations thereon
used in connection with the Cumulus Stations or the business and operations
thereon which are reasonably likely to give rise to an environmental claim or
result in Environmental Costs and Liabilities (as hereinafter defined).
(d) To Cumulus' Knowledge, all substances, materials or waste that
are regulated
13
by federal, state or local government under the Environmental Laws as hazardous,
toxic or a pollutant or contaminant, as well as any petroleum or petroleum
derived product, used or generated by Cumulus or, to Cumulus' Knowledge, by any
Predecessor in connection with the Cumulus Real Property and used in connection
with the Cumulus Stations (collectively, the "Hazardous Substances"), have been
stored, used, treated, and disposed of by such persons or on their behalf in
such manner as not to result in any material Environmental Costs or Liabilities.
"Environmental Costs and Liabilities" means any losses, including environmental
remediation costs, clean up funds, liabilities, obligations, damages, fines,
penalties or judgments, arising from or under any Environmental Law or order of
or agreement with any governmental entity or other person.
(e) To Cumulus' Knowledge, there are not now, nor have there been in
the past, on, in or under any Cumulus Real Property used in connection with the
Cumulus Stations when owned, leased or operated by Cumulus, or to Cumulus'
Knowledge, when owned, leased or operated by any Predecessor, any of the
following: underground storage tanks, above-ground storage tanks, dikes or
impoundments containing (i) Hazardous Substances, (ii) asbestos containing
materials, (iii) polychlorinated biphenyls or (iv) radioactive substances or
related compounds (other than those labeled and maintained in accordance with
applicable Environmental Laws) in amounts or concentrations regulated under the
Environmental Laws.
(f) The Cumulus Stations' operations do not have a significant
environmental impact, as defined by 47 C.F.R. (S) 1.1307.
8.10. Intangible Property. Schedule 1.2(d) contains a description of
------------------- ---------------
the material Cumulus Intangible Property included in the Cumulus Stations
Assets. Except as set forth on Schedule 1.2(d), Cumulus has received no notice
---------------
of any claim that its use of the Cumulus Intangible Property infringes upon any
third party rights. Except as set forth on Schedule 1.2(d), Cumulus owns or has
---------------
the right to use the Cumulus Intangible Property free and clear of Liens other
than Cumulus Permitted Liens.
8.11. Compliance with Law. Each of CBI, CWS and CLC has complied in all
-------------------
material respects with all laws, regulations, rules, writs, injunctions,
ordinances, franchises, decrees or orders of any court or of any foreign,
federal, state, municipal or other governmental authority which are applicable
to the operation of the Cumulus Stations. To Cumulus' Knowledge, there is no
action, suit or proceeding pending or threatened against CBI, CWS or CLC in
respect of the Cumulus Stations that will subject NextMedia and/or the Trust to
material liability or which questions the legality or propriety of the
transactions contemplated by this Agreement. To Cumulus' Knowledge, there are no
governmental claims or investigations pending or threatened against CBI, CWS or
CLC in respect of the Cumulus Stations (except those affecting the industry
generally).
8.12. No other Finder. No broker, finder or other person is entitled to
---------------
a commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Cumulus or any party acting on Cumulus' behalf, except Media
Services Group, Inc., whose fees shall be shared equally by Cumulus and
NextMedia.
14
8.13. Absence of Undisclosed Liabilities. There are no material
----------------------------------
liabilities of CBI, CWS or CLC of any kind whatsoever with respect to the
Cumulus Stations (whether absolute, vested, matured, in arrears, accrued,
contingent or otherwise, and whether due or to become due, which are required to
be reflected on, or disclosed in the notes to their consolidated balance sheets
prepared in accordance with GAAP), other than the liabilities and obligations
(a) provided for or reserved against in Cumulus' financial statements or (b)
arising in the ordinary course of business after the date of the latest
unaudited balance sheet pertaining to the Cumulus Stations and consistent with
past experiences.
8.14. Insurance. Cumulus has previously provided to NextMedia copies of
---------
all fire, liability and other forms or policies of insurance and all fidelity
bonds held by or applicable to the Cumulus Stations setting forth in respect of
each such policy the policy name, policy number, carrier, term, type of coverage
and annual premium, each of which is in full force and effect on the date
hereof, is valid and enforceable in accordance with its terms and is in an
amount consistent with past practices. No event or claim has occurred,
including, without limitation, the failure by CBI, CWS or CLC to give any notice
or information, or the delivery of any inaccurate or erroneous notice or
information, or any reservation of rights, which limits or impairs the rights of
the insured parties under any such insurance policies. Cumulus shall cause
comparable policies of insurance to remain in effect for acts, omissions and
events occurring on or prior to the Closing Date.
8.15. Qualification. Cumulus is legally, financially and otherwise
-------------
qualified to be the licensee of, acquire, own and operate the Trust Station and
the Cumulus Stations under the Communication Laws. To Cumulus's Knowledge,
there are no facts (other than Cumulus' ownership of other radio stations in the
Myrtle Beach, SC area, as previously disclosed by Cumulus) that would, under
existing law and the Communication Laws, disqualify Cumulus as an assignee of
the Trust FCC Licenses or as the owner and operator of the Trust Station. No
request by Cumulus for waiver of any FCC rule or policy is necessary for the FCC
Consent to be obtained. To Cumulus's Knowledge, there is no action, suit or
proceeding pending or threatened against Cumulus which could materially
adversely affect Cumulus's ability to perform its obligations hereunder.
8.16. Legal Proceedings. There are no legal actions, suits, administrative,
-----------------
arbitration or other proceedings or governmental investigations pending or, to
the Knowledge of Cumulus, threatened against CBI, CWS or CLC. To Cumulus'
Knowledge there are no facts which would give rise to any material legal action,
suit or proceeding against CBI, CWS or CLC.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF NEXTMEDIA
-------------------------------------------
NextMedia makes the following representations and warranties to Cumulus, each of
which is true and correct as of the date hereof, and shall be true and correct
as of the Closing Date, and shall be unaffected by any investigation heretofore
or hereafter made by any party. Each of the following representations and
warranties are subject to exceptions set forth in full and complete Disclosure
Statements corresponding to the numbered paragraphs in this Article 9.
NextMedia will deliver
15
these Disclosure Statements to Cumulus prior to the date of this Agreement.
9.1. Organization. NextMedia is duly organized, validly existing and in
------------
good standing under the laws of the jurisdiction of its organization, and is
qualified to do business in each jurisdiction in which the Cumulus Stations
Assets are located. NextMedia has the requisite corporate power and authority
to execute and deliver this Agreement and all of the other agreements and
instruments to be executed and delivered by NextMedia pursuant hereto
(collectively, the "NextMedia Ancillary Agreements"), to consummate the
transactions contemplated hereby and thereby and to comply with the terms,
conditions and provisions hereof and thereof.
9.2. Authorization. The execution, delivery and performance of this
-------------
Agreement and the NextMedia Ancillary Agreements by NextMedia have been duly
authorized and approved by all necessary action of NextMedia and do not require
any further authorization or consent of NextMedia. This Agreement is, and each
NextMedia Ancillary Agreement when executed and delivered by NextMedia and the
other parties thereto will be, a legal, valid and binding agreement of NextMedia
enforceable in accordance with its respective terms, except in each case as such
enforceability may be limited by bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting or limiting the enforcement of
creditors' rights generally and except as such enforceability is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
9.3. No Conflicts. Neither the execution and delivery by NextMedia of this
------------
Agreement and the NextMedia Ancillary Agreements or the consummation by
NextMedia of any of the transactions contemplated hereby or thereby nor
compliance by NextMedia with or fulfillment by NextMedia of the terms,
conditions and provisions hereof or thereof will: (i) conflict with any
organizational documents of NextMedia or any law, judgment, order, or decree to
which NextMedia is subject or, except as set forth on Schedule 1.4(c), any
---------------
NextMedia Stations Contract; or (ii) require the approval, consent,
authorization or act of, or the making by NextMedia of any declaration, filing
or registration with, any third party or any foreign, federal, state or local
court, governmental or regulatory authority or body, except the FCC Consent.
9.4. No other Finder. No broker, finder or other person is entitled to
---------------
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of NextMedia or any party acting on NextMedia's behalf, except Media
Services Group, Inc., whose fees shall be shared equally by NextMedia and
Cumulus.
9.5. Qualification. NextMedia is legally, financially and otherwise
-------------
qualified to be the licensee of, acquire, own and operate the Cumulus Stations
under the Communication Laws. NextMedia knows of no facts (other than
NextMedia's attributable interests in other radio stations in the Jacksonville,
NC area, as previously disclosed by NextMedia) that would, under existing law
and the Communication Laws, disqualify NextMedia as an assignee of the Cumulus
FCC Licenses or as the owner and operator of the Cumulus Stations. No request
by NextMedia for waiver of any FCC rule or policy is necessary for the FCC
Consent to be obtained. To NextMedia's knowledge
16
there is no action, suit or proceeding pending or threatened against NextMedia
which could materially adversely affect NextMedia's ability to perform its
obligations hereunder.
9.6 Legal Proceedings. There are no legal actions, suits,
-----------------
administrative, arbitration or other proceedings or governmental investigations
pending or, to the Knowledge of NextMedia, threatened against NextMedia. To
NextMedia's Knowledge there are no facts which would give rise to any material
legal action, suit or proceeding against NextMedia.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES OF THE TRUST
-------------------------------------------
The Trust makes the following representations and warranties to Cumulus, each of
which is true and correct as of the date hereof, and shall be true and correct
as of the Closing Date, and shall be unaffected by any investigation heretofore
or hereafter made by any party. Each of the following representations and
warranties are subject to exceptions set forth in full and complete Disclosure
Statements corresponding to the numbered paragraphs in this Article 10. The
Trust will deliver these Disclosure Statements to Cumulus prior to the date of
this Agreement.
10.1. Organization. The Trust is duly organized, validly existing and
------------
in good standing under the laws of the jurisdiction of its organization, and is
qualified to do business in each jurisdiction in which the Trust Station Assets
are located. The Trust has the requisite power and authority to execute and
deliver this Agreement and all of the other agreements and instruments to be
executed and delivered by the Trust pursuant hereto (collectively, the "Trust
Ancillary Agreements"), to consummate the transactions contemplated hereby and
thereby and to comply with the terms, conditions and provisions hereof and
thereof.
10.2. Authorization. The execution, delivery and performance of this
-------------
Agreement and the Trust Ancillary Agreements by the Trust have been duly
authorized and approved by all necessary action of the Trust and do not require
any further authorization or consent of the Trust. This Agreement is, and each
Trust Ancillary Agreement when executed and delivered by the Trust and the other
parties thereto will be, a legal, valid and binding agreement of the Trust
enforceable in accordance with its respective terms, except in each case as such
enforceability may be limited by bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting or limiting the enforcement of
creditors' rights generally and except as such enforceability is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
10.3. No Conflicts. Neither the execution and delivery by the Trust of
------------
this Agreement and the Trust Ancillary Agreements or the consummation by the
Trust of any of the transactions contemplated hereby or thereby nor compliance
by the Trust with or fulfillment by the Trust of the terms, conditions and
provisions hereof or thereof will: (i) conflict with any organizational
documents of the Trust or any law, judgment, order, or decree to which the Trust
is subject or, except as set forth on Schedule 1.4(c), any Trust Station
---------------
Contract; or (ii) require the approval, consent,
17
authorization or act of, or the making by the Trust of any declaration, filing
or registration with, any third party or any foreign, federal, state or local
court, governmental or regulatory authority or body, except the FCC Consent.
10.4. FCC Licenses. Schedule 1.4 (a) lists (i) all licenses, permits
------------ ----------------
and other authorizations (including all broadcast auxiliary licenses,
construction permits and all grants of Special Temporary Authority ("STA"))
issued by the FCC relating to the Trust Station as of the date of this Agreement
and (ii) all licenses, permits or authorizations issued to the Trust by any
other governmental entities which are material to the business or operations of
the Trust Station and held by the Trust as of the date of this Agreement. Such
licenses, permits and authorizations, and all applications for modification,
extension or renewal thereof or for new licenses, permits, permissions or
authorizations applicable to the business or operations of the Trust Station are
collectively referred to herein as the Trust FCC Licenses (as further defined in
Section 1.4(a)), each of which is in full force and effect. To the Trust's
Knowledge, the Trust Station has been operated in all material respects in
accordance with the terms of the Trust FCC Licenses. All towers and other
structures used in the operation of the Trust Station or the Trust Station
Assets or located on the Trust Real Property are obstruction marked and lighted
to the extent required by, and in accordance with the rules and regulations of
the Federal Aviation Administration (the "FAA"), the FCC and other governmental
entities. Appropriate notifications to the FAA and registrations with the FCC
have been filed for such towers where required. Except for proceedings affecting
the radio broadcast industry generally, there are no proceedings pending or, to
the Trust's Knowledge, threatened with respect to the Trust's ownership or
operation of the Trust Station which reasonably may be expected to result in the
revocation, material adverse modification, non-renewal or suspension of any of
the Trust FCC Licenses, the denial of any pending applications for the Trust FCC
Licenses, the issuance against the Trust of any cease and desist order, or the
imposition of any administrative actions by the FCC or any other governmental
entity with respect to the Trust FCC Licenses, or which reasonably may be
expected to adversely affect the Trust Station's ability to operate as currently
operated or Cumulus' ability to obtain assignment of the Trust FCC Licenses.
Except as set out in Schedule 1.4(a) hereto, and with the exception of such
---------------
temporary reduced power operations as are necessary for routine maintenance, the
Trust Station operates (A) in conformity with the Trust FCC Licenses and (B)
within the operating power tolerances specified in 47 C.F.R. (S)73.1560(b) and
47 C.F.R. (S)73.1560(a)(1). To the Trust's Knowledge, no other broadcast
Stations or radio communications facility is causing interference to the Trust
Station's transmissions beyond that which is allowed by FCC rules and
regulations. The Trust has all necessary authority to use the call signs set
forth on Schedule 1.4 (a).
----------------
10.5. Taxes. The Trust has, in respect of the Trust Station's business,
-----
filed all foreign, federal, state, county and local income, excise, property,
sales, use, franchise and other tax returns and reports which are required to
have been filed by it under applicable law and has paid all taxes which have
become due pursuant to such returns or pursuant to any assessments which have
become payable.
10.6. Personal Property. Schedule 1.4(b) contains a list of all material
----------------- ---------------
items of the Trust Tangible Personal Property included in the Trust Station
Assets. The Trust has title to the Trust
18
Tangible Personal Property free and clear of Liens other than Trust Permitted
Liens.
10.7. Real Property. Schedule 1.4(g) contains a description of all Trust
------------- ---------------
Real Property included in the Trust Station Assets. Schedule 1.4(g) includes a
---------------
description of each real property lease or similar agreement included in the
Trust Station Assets (the "Trust Real Property Leases"). The Trust Real Property
Leases provide, access to the Trust Station's facilities. To the Trust's
Knowledge, the Trust Real Property is not subject to any suit for condemnation
or other taking by any public authority.
10.8. Contracts. Each of the Trust Station Contracts (including without
---------
limitation each of the Trust Real Property Leases) is in effect and is binding
upon the Trust and, to the Trust's Knowledge, the other parties thereto (subject
to bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally). The Trust has
performed its obligations under each of the Trust Station Contracts in all
material respects, and is not in material default thereunder, and to the Trust's
Knowledge, no other party to any of the Trust Station Contracts is in default
thereunder in any material respect.
10.9. Environmental. On the date of this Agreement, except as previously
-------------
revealed to Cumulus:
(a) To the Trust's Knowledge, the Trust Real Property used in
connection with the Trust Station and the business and operations thereon is,
and except with respect to any predecessor or prior owner, operator or lessee
(each a "Predecessor"), in substantial compliance with all applicable federal,
state and local statutes, codes, rules, ordinances or regulations relating to
the environment, natural resources and public or employee health and safety
(collectively, the "Environmental Laws").
(b) No judicial or administrative proceedings are pending or, to the
Trust's Knowledge, threatened against the Trust or any of the Trust Real
Property used in connection with the Trust Station, alleging the violation of or
seeking to impose liability pursuant to any Environmental Law. No notice or
claim from any governmental entity or other person has been given to the Trust
claiming violation of or alleging any liability under remediation of any
Environmental Laws in connection with any of the Trust Real Property used in
connection with the Trust Station or operations thereon.
(c) To the Trust's Knowledge, there are no facts, circumstances or
conditions on the Trust Real Property or the business or operations thereon used
in connection with the Trust Station or the business and operations thereon
which are reasonably likely to give rise to an environmental claim or result in
Environmental Costs and Liabilities (as hereinafter defined).
(d) To the Trust's Knowledge, all substances, materials or waste that
are regulated by federal, state or local government under the Environmental Laws
as hazardous, toxic or a pollutant or contaminant, as well as any petroleum or
petroleum derived product, used or generated by the Trust or, to the Trust's
Knowledge, by any Predecessor in connection with the Trust Real
19
Property and used in connection with the Trust Station (collectively, the
"Hazardous Substances"), have been stored, used, treated, and disposed of by
such persons or on their behalf in such manner as not to result in any material
Environmental Costs or Liabilities. "Environmental Costs and Liabilities" means
any losses, including environmental remediation costs, clean up funds,
liabilities, obligations, damages, fines, penalties or judgments, arising from
or under any Environmental Law or order of or agreement with any governmental
entity or other person.
(e) To the Trust's Knowledge, there are not now, nor have there
been in the past, on, in or under any Trust Real Property used in connection
with the Trust Station when owned, leased or operated by the Trust, or to the
Trust's Knowledge, when owned, leased or operated by any Predecessor, any of the
following: underground storage tanks, above-ground storage tanks, dikes or
impoundments containing (i) Hazardous Substances, (ii) asbestos containing
materials, (iii) polychlorinated biphenyls or (iv) radioactive substances or
related compounds (other than those labeled and maintained in accordance with
applicable Environmental Laws) in amounts or concentrations regulated under the
Environmental Laws.
(f) The Trust Station's operations do not have a significant
environmental impact, as defined by 47 C.F.R. (S) 1.1307.
10.10. Intangible Property. Schedule 1.4(d) contains a description of the
------------------- ---------------
material Trust Intangible Property included in the Trust Station Assets. Except
as set forth on Schedule 1.4(d), the Trust has received no notice of any claim
---------------
that its use of the Trust Intangible Property infringes upon any third party
rights. Except as set forth on Schedule 1.4(d), the Trust owns or has the right
---------------
to use the Trust Intangible Property free and clear of Liens other than Trust
Permitted Liens.
10.11. Compliance with Law. The Trust has complied in all material
-------------------
respects with all laws, regulations, rules, writs, injunctions, ordinances,
franchises, decrees or orders of any court or of any foreign, federal, state,
municipal or other governmental authority which are applicable to the operation
of the Trust Station. To the Trust's Knowledge, there is no action, suit or
proceeding pending or threatened against the Trust in respect of the Trust
Station that will subject Cumulus to material liability or which questions the
legality or propriety of the transactions contemplated by this Agreement. To the
Trust's Knowledge, there are no governmental claims or investigations pending or
threatened against the Trust in respect of the Trust Station (except those
affecting the industry generally).
10.12. No other Finder. No broker, finder or other person is entitled to a
---------------
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of the Trust or any party acting on the Trust's behalf. NextMedia and
Cumulus shall each pay one half of the brokerage fee due Media Services
Group,Inc.
10.13. Absence of Undisclosed Liabilities. There are no material
----------------------------------
liabilities of the Trust of any kind whatsoever with respect to the Trust
Station (whether absolute, vested, matured, in arrears, accrued, contingent or
otherwise, and whether due or to become due, which are required to be
20
reflected on, or disclosed in the notes to a consolidated balance sheet of the
Trust prepared in accordance with GAAP), other than the liabilities and
obligations (a) provided for or reserved against in the Trust's financial
statements or (b) arising in the ordinary course of business after the date of
the latest unaudited balance sheet pertaining to the Trust Station and
consistent with past experiences.
10.14. Insurance. The Trust has previously provided to Cumulus copies of
---------
all fire, liability and other forms or policies of insurance and all fidelity
bonds held by or applicable to the Trust Station setting forth in respect of
each such policy the policy name, policy number, carrier, term, type of coverage
and annual premium, each of which is in full force and effect on the date
hereof, is valid and enforceable in accordance with its terms and is in an
amount consistent with past practices. No event or claim has occurred,
including, without limitation, the failure by the Trust to give any notice or
information, or the delivery of any inaccurate or erroneous notice or
information, or any reservation of rights, which limits or impairs the rights of
the insured parties under any such insurance policies. The Trust shall cause
comparable policies of insurance to remain in effect for acts, omissions and
events occurring on or prior to the Closing Date.
10.15. Qualification. To the Trust's Knowledge, the Trust is legally,
-------------
financially and otherwise qualified to be the licensee of, own and operate the
Trust Station under the Communication Laws. To the Trust's Knowledge, there are
no facts that would, under existing law and the Communication Laws, disqualify
the Trust, as the licensee, owner and operator of the Trust Station. No request
by the Trust for waiver of any FCC rule or policy is necessary for the FCC
Consent to be obtained. To the Trust's Knowledge, there is no action, suit or
proceeding pending or threatened against the Trust which could materially
adversely affect the Trust's ability to perform its obligations hereunder.
10.16. Legal Proceedings. There are no legal actions, suits,
-----------------
administrative, arbitration or other proceedings or governmental investigations
pending or, to the Knowledge of the Trust, threatened against the Trust. To the
Trust's Knowledge there are no facts which would give rise to any material legal
action, suit or proceeding against the Trust.
ARTICLE 11
COVENANTS
---------
11.1. Cumulus' Covenants. Cumulus covenants and agrees with respect to
------------------
the Cumulus Stations that, between the date hereof and Closing, except as
permitted by this Agreement or with the prior written consent of NextMedia,
which shall not be unreasonably withheld, Cumulus shall:
(a) subject to TBA # 2, operate the Cumulus Stations in the ordinary
course of business consistent with past practices and in all material respects
in accordance with FCC rules and regulations and with all other applicable laws,
regulations, rules and orders;
(b) not, other than in the ordinary course of business in accordance
with past practices, sell, lease or dispose of or agree to sell, lease or
dispose of any of the Cumulus Stations
21
Assets, or create, assume or permit to exist any Liens upon the Cumulus Stations
Assets, except for Cumulus Permitted Liens;
(c) maintain insurance in accordance with Section 8.14;
(d) [Intentionally Omitted]
(e) upon reasonable written notice from NextMedia, (i) give or cause
the Cumulus Stations to give NextMedia and NextMedia's counsel, accountants,
engineers and other representatives, including environmental consultants,
reasonable access during normal business hours to all of Cumulus' properties,
books, Cumulus Stations Contracts, Cumulus Trade Agreements, Cumulus Time Sales
Agreements, reports and records including financial information and tax returns
relating to the Cumulus Stations, and to all real estate, buildings and
equipment relating to the Cumulus Stations, in order that NextMedia may have
full opportunity to make such investigation, including, but not limited to,
environmental assessments, as it desires of the affairs of the Cumulus Stations
and (ii) furnish NextMedia 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 Cumulus Stations, that NextMedia may reasonably request. The
rights of NextMedia under this Section shall not be exercised in such a manner
as to interfere unreasonably with the business of the Cumulus Stations;
provided, however, that such investigations shall not adversely effect or
diminish the effect of any and all representation and warranties made by Cumulus
herein.
(f) not take any action that is materially inconsistent with its
obligations under this Agreement;
(g) for a period of two (2) years following the Closing Date, make
available during normal business hours for audit and inspection by the Trust 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. All information, records, files, documents
and correspondence made available or disclosed to the Trust under this Section
11.1 shall be kept confidential by the Trust; and
(h) furnish NextMedia with such information relating to the Cumulus
Stations Assets as NextMedia may reasonably request, at NextMedia's expense and
provided such request does not interfere unreasonably with the business of the
Cumulus Stations.
11.2. Trust's Covenants. The Trust covenants and agrees with respect
-----------------
to the Trust Station that, between the date hereof and Closing, except as
permitted by this Agreement or with the prior written consent of Cumulus, which
shall not be unreasonably withheld, the Trust shall:
(a) subject to TBA # 1, operate the Trust Station in the ordinary
course of business consistent with past practices and in all material respects
in accordance with FCC rules and regulations and with all other applicable laws,
regulations, rules and orders;
22
(b) not, other than in the ordinary course of business in accordance
with past practices, sell, lease or dispose of or agree to sell, lease or
dispose of any of the Trust Station Assets, or create, assume or permit to exist
any Liens upon the Trust Station Assets, except for Trust Permitted Liens;
(c) maintain insurance in accordance with Section 10.14;
(d) [INTENTIONALLY OMITTED]
(e) upon reasonable written notice from Cumulus (i) give or cause the
Trust Station to give Cumulus and Cumulus' counsel, accountants, engineers and
other representatives, including environmental consultants, reasonable access
during normal business hours to all of the Trust's properties, books, Trust
Station Contracts, Trust Trade Agreements, Trust Time Sales Agreements, reports
and records including financial information and tax returns relating to the
Trust Station, and to all real estate, buildings and equipment relating to the
Trust Station, in order that Cumulus may have full opportunity to make such
investigation, including, but not limited to, environmental assessments, as it
desires of the affairs of the Trust Station and (ii) furnish Cumulus 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 Trust Station,
that Cumulus may reasonably request. The rights of Cumulus under this Section
shall not be exercised in such a manner as to interfere unreasonably with the
business of the Trust Station; provided, however, that such investigations shall
not adversely effect or diminish the effect of any and all representation and
warranties made by the Trust herein.
(f) not take any action that is materially inconsistent with its
obligations under this Agreement; and
(g) furnish Cumulus with such access to the Trust Station and
information relating to the Trust Station Assets as Cumulus may reasonably
request, at Cumulus's expense and provided such request does not interfere
unreasonably with the business of the Trust Station.
11.3. NextMedia Covenants. NextMedia covenants and agrees with respect to
-------------------
the Cumulus Stations that, between the date hereof and Closing, except as
permitted by this Agreement or with the prior written consent of Cumulus, which
shall not be unreasonably withheld, NextMedia shall:
(a) not take any action that is materially inconsistent with its
obligations under this Agreement;
(b) for a period of two (2) years following the Closing Date, make
available during normal business hours for audit and inspection by Cumulus 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. All information, records, files, documents
and correspondence made available or disclosed to Cumulus under this Section
11.3 shall be kept confidential by Cumulus; and
23
(c) upon reasonable written notice from Cumulus (i) give Cumulus and
Cumulus' counsel, accountants, engineer and other representatives, including
environmental consultants, reasonable access during normal business hours to all
pertinent NextMedia properties, books, Trust Station Contracts, Trust Trade
Agreements, Trust Time Sales Agreement, reports and records including financial
information and tax returns relating to the Trust Station, and to all real
estate, buildings and equipment relating to the Trust Station, in order that
Cumulus may have full opportunity to make such investigation, including, but
not limited to, environmental assessments, as it desires of the affairs of the
Trust Station and (ii) furnish Cumulus 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 Trust Station, that Cumulus may reasonably
request. The rights of Cumulus under this Section shall not be exercise in such
a manner as to interfere unreasonably with the business of NextMedia; provided,
however, that such investigations shall not adversely effect or diminish the
effect of any and all representations and warranties made by the Trust herein.
In this connection, Cumulus recognizes that the Trust is the licensee of the
Trust Station and that any information in NextMedia's possession is historical
in character, relating to the periods prior to the Trust's acquisition of the
Trust Station..
ARTICLE 12
JOINT COVENANTS
---------------
Each of the Trust, Cumulus and NextMedia hereby covenant and agree that between
the date hereof and Closing:
12.1. Confidentiality. The parties hereto shall not disseminate, disclose,
---------------
reveal, divulge, inform, or communicate, directly or indirectly, through any
person or entity, including, but not limited to, its managers, members,
officers, directors, employees, representatives, agents, advisors, and
attorneys, and shall preserve and keep confidential all information
("Confidential Information") obtained by any of them with respect to the other
party 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
each other party hereto, without retaining a copy thereof, any schedules,
contracts, records, properties, extracts, summaries, documents or any 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 (a) is known or available through other lawful sources, not
bound by a confidentiality agreement with the disclosing party, (b) is or
becomes publicly known through no fault of the receiving party or its agents,
(c) 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), (d) is developed by the receiving party
independently of the disclosure by the disclosing party or (e) is required to be
disclosed under applicable law or rule, as determined by counsel for the
receiving
24
party. This covenant shall survive the Closing Date, and the expiration or
termination of this Agreement.
12.2. Cooperation. Subject to express limitations contained elsewhere
-----------
herein, each party (i) shall cooperate fully with one another in taking any
reasonable actions (including without limitation, reasonable actions to obtain
the required consent of any governmental instrumentality or any third party)
necessary or helpful to accomplish the transactions contemplated by this
Agreement, including but not limited to the prompt satisfaction of any condition
to Closing set forth herein, and (ii) shall not take any action that conflicts
with its obligations hereunder or that causes its representations and warranties
to become untrue in any material respect.
12.3. Control of Stations. No party shall, directly or indirectly,
-------------------
control, supervise or direct the operations of the other party's stations prior
to Closing. Such operations, including complete control and supervision of all
programs, employees and policies, shall be the sole responsibility of the FCC
licensee thereof.
12.4. Bulk Sales Laws.
---------------
(a) NextMedia hereby waives compliance by Cumulus with the provisions
of the "bulk sales" or similar laws of any state. Cumulus shall defend and
indemnify NextMedia and hold it forever harmless from any and all losses,
settlements, judgments, actions, suits, claims, costs, damages and expenses
(including but not limited to, reasonable attorneys' fees at all levels)
sustained by NextMedia as a result of any failure of Cumulus to comply with any
"bulk sales" or similar laws. This covenant shall survive the Closing Date and
the expiration or termination of this Agreement.
(b) Cumulus hereby waives compliance by the Trust, with the
provisions of the "bulk sales" or similar laws of any state. The Trust and
NextMedia shall defend and indemnify Cumulus, and hold it forever harmless from
any and all losses, settlements, judgments, actions, suits, claims, costs,
damages and expenses (including but not limited to, reasonable attorneys' fees
at all levels) sustained by Cumulus as a result of any failure of the Trust to
comply with any "bulk sales" or similar laws. This covenant shall survive the
Closing Date and the expiration or termination of this Agreement.
12.5. Public Announcements. Prior to the Closing, none of the parties
--------------------
hereto shall issue any press release or make any public disclosure with respect
to the transactions contemplated by this Agreement without the prior written
approval of the other parties, except (a) the parties may make any disclosure as
may be required by applicable law or by obligations pursuant to any listing
agreement with any securities exchange or any stock exchange regulations; and
(b) the parties may continue such communications with employees, customers,
suppliers, franchises, lenders, lessors, shareholders, and other particular
groups as may be legally required or necessary or appropriate and not
inconsistent with the best interests of the other party or the prompt
consummation of the transactions contemplated herein.
12.6. Employee Matters. The Trust and Cumulus have each delivered to the
----------------
other a list of
25
employees of its Stations. Each party shall be responsible for the payment of
all compensation (including commissions) and accrued employee benefits
(including, but not limited to, accrued vacation and unused sick time) arising
out of the operation of its station(s) prior to the TBA #1 Commencement Date
and/or the TBA #2 Commencement Date and shall be responsible for severance pay
and any other issues arising from any termination of its employees.
12.7. 1031 Exchange. At or prior to Closing, the parties hereto may assign
-------------
their rights under this Agreement (in whole or in part) to a qualified
intermediary (as defined in Treasury Regulation section 1.1031(k)-1(g)(4)) or
similar entity or arrangement ("Qualified Intermediary"). Upon any such
assignment, such party shall promptly give written notice thereof to the other
parties and such parties shall cooperate with the reasonable requests of the
assigning party and any Qualified Intermediary in connection therewith. Without
limiting the generality of the foregoing, if any party gives notice of such
agreement, the other parties shall (i) promptly provide the assigning party with
written acknowledgment of such notice and (ii) at Closing, convey all or part of
the Cumulus Stations Assets and/or the Trust Station Assets to the Qualified
Intermediary (which conveyance shall, to the extent thereof, satisfy the
obligation of the assigning party to make such conveyance hereunder). Any
parties assignment to a Qualified Intermediary will not relieve it of any of its
duties or obligations herein. Except for the obligations of the parties set
forth in this Section, no party shall have any liability or obligation to
another party for the failure of such other exchange to qualify as a like-kind
exchange under Section 1031 of the Code unless such failure is the result of the
material breach or default by the assigning party under this Agreement.
ARTICLE 13
CONDITIONS OF CLOSING BY CUMULUS
--------------------------------
The obligations of Cumulus hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
13.1. Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of NextMedia and/or the Trust made in this Agreement shall be true
and correct in all material respects as of the Closing Date except for changes
permitted or contemplated by the terms of this Agreement, and the covenants and
agreements to be complied with and performed by NextMedia and/or the Trust at or
prior to Closing shall have been complied with or performed in all material
respects. Cumulus shall have received a certificate dated as of the Closing Date
from each of NextMedia and the Trust, executed by an authorized officer of
NextMedia and the Trustee of the Trust to the effect that the conditions set
forth in this Section 13.1 have been satisfied.
13.2. Compliance with Agreement. All of the terms, covenants and
-------------------------
conditions to be complied with and performed by NextMedia and/or the Trust on or
prior to the Closing Date shall have been complied with or performed in all
material respects. Cumulus shall have received a certificate dated as of the
Closing Date from each of NextMedia and the Trust, executed by an authorized
officer of NextMedia and the Trustee of the Trust to the effect that the
conditions set forth in this Section 13.2 have been satisfied.
26
13.3. Governmental Consents. The FCC Consent shall have been obtained
---------------------
without any conditions that would otherwise permit any party to terminate this
Agreement, and such FCC Consent shall have become a Final Order, and no court or
governmental order prohibiting Closing shall be in effect.
13.4. Adverse Proceedings. No injunction, order, decree or judgement of any
-------------------
court, agency or other governmental entities shall have been rendered against
NextMedia, the Trust or Cumulus which would render it unlawful as of the Closing
Date, to effect the transactions contemplated by this Agreement in accordance
with its terms.
13.5. Third Party Consents and Approvals. The Trust shall have obtained
----------------------------------
all third-party consents and approvals, if any, required for the transfer or
continuance, as the case may be, of the Material Contracts identified on
Schedule 1.4(c).
ARTICLE 14
CONDITIONS OF CLOSING BY NEXTMEDIA
----------------------------------
The obligations of NextMedia hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
14.1. Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Cumulus made in this Agreement shall be true and correct in all
material respects as of the Closing Date except for changes permitted or
contemplated by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Cumulus at or prior to Closing shall have been
complied with or performed in all material respects. NextMedia shall have
received certificates dated as of the Closing Date from Cumulus, executed by
authorized officers of Cumulus, to the effect that the conditions set forth in
this Section 14.1 have been satisfied.
14.2. Compliance with Agreement. All of the terms, covenants and conditions
-------------------------
to be complied with and performed by Cumulus on or prior to the Closing Date
shall have been complied with or performed in all material respects. NextMedia
shall have received certificates dated as of the Closing Date from Cumulus,
executed by authorized officers of Cumulus to the effect that the conditions set
forth in this Section 14.2 have been satisfied.
14.3. Governmental Consents. The FCC Consent shall have been obtained
---------------------
without any conditions that would otherwise permit any party to terminate this
Agreement, and such Consent shall have become a Final Order, and no court or
governmental order prohibiting Closing shall be in effect.
14.4. Adverse Proceedings. No injunction, order, decree or judgement of
-------------------
any court, agency or other governmental entities shall have been rendered
against NextMedia, the Trust or Cumulus which would render it unlawful as of the
Closing Date, to effect the transactions contemplated by this Agreement in
accordance with its terms.
27
14.5. Third Party Consents and Approvals. Cumulus shall have obtained all
----------------------------------
third-party consents and approvals, if any, required for the transfer or
continuance, as the case may be, of the Material Cumulus Stations Contracts
identified on Schedule 1.2(c).
ARTICLE 15
CONDITIONS OF CLOSING BY TRUST
------------------------------
The obligations of the Trust hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
15.1. Representations, Warranties and Covenants. The representations and
-----------------------------------------
warranties of Cumulus made in this Agreement shall be true and correct in all
material respects as of the Closing Date except for changes permitted or
contemplated by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Cumulus at or prior to Closing shall have been
complied with or performed in all material respects. The Trust shall have
received certificates dated as of the Closing Date from Cumulus, executed by
authorized officers of Cumulus, to the effect that the conditions set forth in
this Section 15.1 have been satisfied.
15.2. Compliance with Agreement. All of the terms, covenants and
-------------------------
conditions to be complied with and performed by Cumulus on or prior to the
Closing Date shall have been complied with or performed in all material
respects. The Trust shall have received certificates dated as of the Closing
Date from Cumulus, executed by authorized officers of Cumulus to the effect that
the conditions set forth in this Section 15.2 have been satisfied.
15.3. Governmental Consents. The FCC Consent shall have been obtained
---------------------
without any conditions that would otherwise permit any party to terminate this
Agreement, and such Consent shall have become a Final Order, and no court or
governmental order prohibiting Closing shall be in effect.
15.4. Adverse Proceedings. No injunction, order, decree or judgement of
-------------------
any court, agency or other governmental entities shall have been rendered
against NextMedia, the Trust or Cumulus which would render it unlawful as of the
Closing Date, to effect the transactions contemplated by this Agreement in
accordance with its terms.
ARTICLE 16
EXPENSES
--------
16.1. Expenses. Each party shall be solely responsible for all costs and
--------
expenses incurred by it in connection with the negotiation, preparation and
performance of and compliance with the terms of this Agreement, except that (i)
all recordation, transfer and documentary taxes, fees and charges, and any
excise, sales or use taxes, applicable to the transfer of the Cumulus Stations
Assets shall be paid by Cumulus, (ii) all recordation, transfer and documenting
taxes, fees and charges, and any excise, sales or use taxes, applicable to the
transfer of the Trust Station Assets shall be paid by
28
NextMedia, and (iii) all FCC filing fees shall be paid one-half by NextMedia and
one-half by Cumulus
ARTICLE 17
DOCUMENTS TO BE DELIVERED AT CLOSING
------------------------------------
17.1. Cumulus' Documents. At Closing, Cumulus shall deliver or cause to be
------------------
delivered to NextMedia and the Trust:
(i) certified copies of resolutions authorizing execution,
delivery and performance of this Agreement, including the consummation of the
transactions contemplated hereby;
(ii) the certificates described in Sections 14.1 and 14.2;
(iii) such bills of sale, assignments, special warranty deeds,
documents of title and other instruments of conveyance, assignment and transfer
as may be necessary to convey, transfer and assign good and marketable title of
the Cumulus Stations Assets to NextMedia, free and clear of Liens, except for
Cumulus Permitted Liens; and
(iv) such documents and instruments of assumption as may be
necessary to assume the Cumulus Assumed Obligations.
17.2. Trust's Documents. At Closing, the Trust shall deliver or cause
-----------------
to be delivered to Cumulus:
(i) the certified copies of resolutions authorizing its
execution, delivery and performance of this Agreement, including the
consummation of the transactions contemplated hereby;
(ii) the certificates described in Sections 15.1 and 15.2;
(iii) such bills of sale, assignments, special warranty deeds,
documents of title and other instruments of conveyance, assignment and transfer
as may be necessary to convey, transfer and assign good and marketable title of
the Trust Station Assets to Cumulus, free and clear of Liens, except for Trust
Permitted Liens; and
17.3. NextMedia's Documents. At Closing, NextMedia shall deliver or cause
---------------------
to be delivered to Cumulus:
(i) certified copies of resolutions authorizing its execution,
delivery and performance of this Agreement, including the consummation of the
transactions contemplated
29
hereby;
(ii) the certificates described in Sections 13.1 and 13.2; and
(iii) such documents and instruments of assumption as may be
necessary to assume the NextMedia Assumed Obligations.
ARTICLE 18
SURVIVAL; INDEMNIFICATION.
-------------------------
18.1. Survival. The covenants, agreements, representations and
--------
warranties in this Agreement shall survive Closing for a period of one (1) year
from the Closing Date whereupon they shall expire and be of no further force or
effect, except those under (i) this Article 18 that relate to Damages (as
hereinafter defined) for which written notice is given by the indemnified party
to the indemnifying party prior to the expiration, which shall survive until
resolved and (ii) the following provisions (the "Expense Provisions"): Sections
2.1 and 2.3 (Assumed Obligations), 3.2 (Adjustments), 3.3 (Allocation), 7.1 and
7.2 (Accounts Receivable) and 16.1 (Expenses), and indemnification obligations
with respect to such provisions, which shall survive until performed.
18.2. Indemnification.
---------------
(a) From and after the Closing, Cumulus shall defend, indemnify and
hold harmless NextMedia and/or the Trust from and against any and all losses,
costs, damages, liabilities and expenses, including reasonable attorneys' fees
and expenses ("Damages") incurred by NextMedia and/or the Trust arising out of
or resulting from: (i) any material breach or material default by Cumulus under
this Agreement; (ii) the Cumulus Retained Obligations or the business or
operation of the Cumulus Stations before Closing; or (iii) the Cumulus Assumed
Obligations or the business or operation of the Trust Station after Closing;
provided, however, that, except for the Expense Provisions (which shall not be
subject to such limitations), (i) Cumulus shall have no liability to NextMedia
and/or the Trust hereunder until, and only to the extent that, each of
NextMedia's and the Trust's aggregate Damages exceed $50,000 and (ii) the
maximum liability of Cumulus hereunder shall not exceed $500,000.00 per station.
(b) From and after the Closing, NextMedia and the Trust shall defend,
indemnify and hold harmless Cumulus from and against any and all Damages
incurred by Cumulus arising out of or resulting from: (i) any material breach or
material default by NextMedia or the Trust under this Agreement; (ii) the Trust
Retained Obligations or the business or operation of the Trust Station before
Closing; or (iii) the NextMedia Assumed Obligations or the business or operation
of the Cumulus Stations after Closing; provided, however, that, except for the
Expense Provisions (which shall not be subject to such limitations), (i) neither
NextMedia nor the Trust shall have liability to Cumulus hereunder until, and
only to the extent that, Cumulus's aggregate Damages exceed $50,000 and (ii) the
aggregate maximum liability of NextMedia and the Trust hereunder shall be
30
$500,000.00.
18.3. Procedures. The indemnified party shall give prompt written notice
----------
to the indemnifying party of any demand, suit, claim or assertion of liability
by third parties or other circumstances that could give rise to an
indemnification obligation hereunder against the indemnifying party (a "Claim"),
but a failure to give such notice or delaying such notice shall not affect the
indemnified party's right to indemnification and the indemnifying party's
obligation to indemnify as set forth in this Agreement, except to the extent the
indemnifying party's ability to remedy, contest, defend or settle with respect
to such Claim is thereby prejudiced. The obligations and liabilities of the
parties with respect to any Claim shall be subject to the following additional
terms and conditions:
(a) The indemnifying party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense or opposition
to such Claim.
(b) In the event that the indemnifying party shall elect not to
undertake such defense or opposition, or, within twenty (20) days after written
notice (which shall include sufficient description of background information
explaining the basis for such Claim) of any such Claim from the indemnified
party, the indemnifying party shall fail to undertake to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
(c) Anything herein to the contrary notwithstanding: (i) the
indemnified party shall have the right, at its own cost and expense, to
participate in the defense, opposition, compromise or settlement of the Claim;
(ii) the indemnifying party shall not, without the indemnified party's written
consent, settle or compromise any Claim or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim; and (iii) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party and their respective counsel or other
representatives shall cooperate in good faith with respect to such Claim.
(d) All claims not disputed shall be paid by the indemnifying party
within thirty (30) days after receiving notice of the Claim. "Disputed Claims"
shall mean claims for Damages by an indemnified party which the indemnifying
party objects to in writing within thirty (30) days after receiving notice of
the Claim. In the event there is a Disputed Claim with respect to any Damages,
the indemnifying party shall be required to pay the indemnified party the amount
of such Damages for which the indemnifying party has, pursuant to a final
determination, been found liable within ten
31
(10) days after there is a final determination with respect to such Disputed
Claim. A final determination of a Disputed Claim shall be (i) a judgment of any
court determining the validity of a Disputed Claim, if no appeal is pending from
such judgment and if the time to appeal therefrom has elapsed; (ii) an award of
any arbitration determining the validity of such disputed claim, if there is not
pending any motion to set aside such award and if the time within which to move
to set aside such award has elapsed; (iii) a written termination of the dispute
with respect to such claim signed by the parties thereto or their attorneys;
(iv) a written acknowledgment of the indemnifying party that it no longer
disputes the validity of such claim; or (v) such other evidence of final
determination of a disputed claim as shall be acceptable to the parties. No
undertaking of defense or opposition to a Claim shall be construed as an
acknowledgment by such party that it is liable to the party claiming
indemnification with respect to the Claim at issue or other similar Claims.
18.4. Guaranty. NextMedia hereby irrevocably and unconditionally guarantees
--------
to Cumulus the full and timely performance, payment and discharge by NextMedia
of the Trust's indemnification obligations under Article 18 or any other
liabilities of the Trust arising out of this Agreement, and hereby agrees that
if the Trust fails to pay any amount when due or otherwise to timely to perform
and discharge its obligations thereunder, NextMedia will forthwith make such
payment or perform and discharge any such obligation or liability. The guaranty
in the preceding sentence is an absolute, present and continuing guaranty of
payment and of performance of obligations and not of collectibility and is in no
way conditional or contingent upon any attempt to seek recourse from the Trust
or upon any other actions, occurrence or circumstance whatsoever. It will not
be necessary for Cumulus, in order to enforce such guaranty by NextMedia, first
to institute suit or exhaust its remedies against the Trust or any other person
liable with respect to the foregoing obligations.
ARTICLE 19
TERMINATION
-----------
19.1. Termination. This Agreement may be terminated at any time prior to
-----------
Closing as follows:
(a) by mutual written consent of each of the Trust, Cumulus and
NextMedia;
(b) by written notice of Cumulus to NextMedia and/or the Trust, if
NextMedia and/or the Trust (i) does not satisfy the material conditions or
perform the obligations to be satisfied or performed by them on the Closing
Date; or (ii) otherwise breaches in any material respect any of their
representations or warranties or defaults in any material respect in the
performance of any of their covenants or agreements herein contained and such
breach or default is not cured within the Cure Period;
(c) by written notice of NextMedia and/or the Trust to Cumulus, if
Cumulus (i) does not satisfy the conditions or perform the obligations to be
satisfied or performed by it on the Closing Date; or (ii) otherwise breaches in
any material respect any of its representations or warranties or defaults in any
material respect in the performance of any of its covenants or
32
agreements herein contained and such breach or default is not cured within the
Cure Period;
(d) [Intentionally Omitted]
(e) by written notice of either party to the other if the FCC
consents contain a condition that materially reduces the value of this
transaction to such party and the time for reconsideration or court review under
the Communication Laws with respect to such condition(s) has expired without the
filing with respect thereto of a timely petition for reconsideration or request
for review;
(f) by a party whose qualifications are not at issue, if, for any
reason, the FCC denies or dismisses the FCC Application and the time for
reconsideration or court review under the Communication Laws 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; and
(g) by written notice of either party to the other if the Closing
shall not have been consummated on or before the end of the eighteenth (18th)
month following the date of this Agreement.
The term "Cure Period" as used herein means a period commencing the date a
party receives from the other written notice of breach or default hereunder and
continuing until the earlier of (i) thirty (30) days thereafter or (ii) the
Closing Date; provided, however, that if the breach or default cannot reasonably
be cured within such period but can be cured before the Closing Date, and if
diligent efforts to cure promptly commence, then the Cure Period shall continue
as long as such diligent efforts to cure continue, but not beyond the Closing
Date. Except as set forth below, the termination of this Agreement shall not
relieve any party of any liability for breach or default under this Agreement
prior to the date of termination.
19.2. Remedies. If a party breaches this Agreement, the non-defaulting
---------
parties may elect one of the following remedies:
(a) Specific Performance. The parties recognize that if any party
--------------------
refuses to consummate the Closing pursuant to the provisions of this Agreement
or any party otherwise breaches or defaults such that the Closing has not
occurred ("Breaching Party"), monetary damages alone will not be adequate to
compensate the non-breaching party ("Non-Breaching Party") for its injury. Such
Non-Breaching Party shall therefore be entitled to obtain specific performance
of the terms of this Agreement in lieu of, and not in addition to, any other
remedies, including but not limited to monetary damages, that may be available
to it. If any action is brought by the Non-Breaching Party to enforce this
Agreement, the Breaching Party shall waive the defense that there is an adequate
remedy at law. In the event of a default by the Breaching Party which results in
the filing of a lawsuit for damages, specific performance, or other remedy, the
Non-Breaching Party shall be entitled to reimbursement by the Breaching Party of
reasonable legal fees and expenses incurred by the Non-Breaching Party at the
trial and appellate levels, provided that the Non-Breaching Party is successful
in such lawsuit.
33
(b) Liquidated Damages. If this Agreement is terminated by Cumulus
------------------
due to NextMedia's and/or the Trust's failure to consummate the Closing on the
Closing Date in accordance with this Agreement, then NextMedia and/or the Trust
shall pay Cumulus as liquidated damages an amount equal to the NextMedia
Deposit. If this Agreement is terminated by NextMedia and/or the Trust due to
Cumulus' failure to consummate the Closing on the Closing Date in accordance
with this Agreement, then Cumulus shall pay NextMedia and/or the Trust as
liquidated damages an amount equal to the Cumulus Deposit. It is understood and
agreed that such liquidated damages amount represents the parties' reasonable
estimate of actual damages and does not constitute a penalty.
ARTICLE 20
MISCELLANEOUS PROVISIONS
------------------------
20.1. Casualty Loss.
-------------
(a) Cumulus. The risk of loss or damage to the Cumulus Station Assets
-------
shall be upon Cumulus at all times prior to the Closing Date. In the event of
loss or damage, Cumulus shall promptly notify NextMedia thereof, and if the lost
or damaged Cumulus Station Assets are capable of being replaced or repaired for
an aggregate amount less than One Hundred Thousand US Dollars ($100,000.00),
then Cumulus shall, at its sole cost and expense, replace or repair such Station
Assets prior to the Closing Date or deliver to NextMedia at the Closing an
amount in cash equal to the cost of replacement or repair of such Cumulus
Station Assets, as mutually agreed in good faith by NextMedia and Cumulus.
Notwithstanding the foregoing, if the amount required to replace or repair such
Cumulus Station Assets exceeds One Hundred Thousand US Dollars ($100,000.00),
Cumulus may elect not to replace or repair such Cumulus Station Assets;
provided, however, that in such event NextMedia, at its option, may elect to
terminate this Agreement or agree to accept from Cumulus, at the Closing, an
amount in cash equal to the cost to replace or repair such Cumulus Station
Assets, as mutually agreed in good faith by NextMedia and Cumulus, and waive any
default or breach with respect to the loss or damage. Any party may extend
the Closing Date by up to thirty (30) days in order to allow Cumulus to complete
any repair or replacement, required or authorized by this Section.
(b) Trust. The risk of loss or damage to the Trust Station Assets
-----
shall be upon the Trust at all times prior to the Closing Date. In the event of
loss or damage, Trust shall promptly notify Cumulus thereof, and if the lost or
damaged Trust Station Assets are capable of being replaced or repaired for an
aggregate amount less than One Hundred Thousand US Dollars ($100,000.00), then
Trust shall, at its sole cost and expense, replace or repair such Trust Station
Assets prior to the Closing Date or deliver to Cumulus at the Closing an amount
in cash equal to the cost of replacement or repair of such Trust Station Assets,
as mutually agreed in good faith by Trust and Cumulus. Notwithstanding the
foregoing, if the amount required to replace or repair such Trust Station Assets
exceeds One Hundred Thousand US Dollars ($100,000.00), Trust may elect not to
replace or repair such Station Assets; provided, however, that in such event
Cumulus, at its option, may elect to
34
terminate this Agreement or agree to accept from Trust, at the Closing, an
amount in cash equal to the cost to replace or repair such Trust Station Assets,
as mutually agreed in good faith by Trust and Cumulus, and waive any default or
breach with respect to the loss or damage. Either party may extend the Closing
Date by up to thirty (30) days in order to allow Trust to complete any repair or
replacement, required or authorized by this Section.
20.2. Further Assurances. After the Closing, each party shall from time to
------------------
time, at the request of and without further cost or expense to the other,
execute and deliver such other instruments and take such other actions as may
reasonably be requested in order to more effectively consummate the transactions
contemplated hereby to exchange assets and assume obligations as contemplated by
this Agreement.
20.3. Assignment. Except as set forth in Sections 12.5 (1031 Exchange), no
----------
no party may assign this Agreement without the prior written consent of the
other parties hereto; provided, however, that without releasing any party from
any of its obligations or liabilities hereunder (a) nothing in this Agreement
shall limit any party's ability to assign this Agreement (including the right to
acquire the Trust FCC Licenses and/or the Cumulus FCC Licenses, as applicable,
at the Closing) to any subsidiary, affiliate or related entity of such party
without the consent of the remaining parties and (b) nothing in this Agreement
shall limit any party's ability to make a collateral assignment of its rights
under this Agreement to any institutional lender that provides funds to such
party without the consent of the remaining party; provided, further, that no
such assignment shall result in any (i) major change to the FCC Applications
under applicable FCC rules and regulations or (ii) delay of the consummation of
the transactions contemplated hereunder.
20.4. Amendments. No amendment, waiver of compliance with any provision or
----------
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
20.5. Headings. The headings set forth in this Agreement are for
--------
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
20.6. Governing Law. The construction and performance of this Agreement
-------------
shall be governed by the laws of the State of Delaware without giving effect to
the choice of law provisions thereof.
20.7. Barter and Trade.
----------------
(a) Cumulus Stations. NextMedia shall not assume any Cumulus Time
----------------
Sales Agreements, or Cumulus Trade Agreements, hereunder unless (a) NextMedia
obtains the value of the goods and services provided in exchange for the
advertising to be broadcast and (b) those goods and services are useful to the
business of the Cumulus Stations. If the value of trade, barter, and similar
arrangements for the sale of advertising time for other than cash that are
assumed by
35
NextMedia under this Agreement is $25,000 or more with respect to the Cumulus
Stations, then Cumulus shall pay NextMedia the excess above the first $25,000
for such Stations at Closing.
(b) Trust Station. Cumulus, shall not assume any Trust Time Sales
-------------
Agreements or Trust Trade Agreements, hereunder unless (a) Cumulus, as
applicable, obtains the value of goods and services provided in exchange for the
advertising to be broadcast and (b) those goods and services are useful to the
business of the Trust Station. If the value of trade, barter, and similar
arrangements for the sale of advertising time for other than cash that are
assumed by Cumulus, under this agreement is $25,000 or more with respect to the
Trust Station, then NextMedia shall pay Cumulus, the excess above the first
$25,000 for such Station at Closing.
20.8. Notices. Any notice, demand or request required or permitted to be
-------
given under the provisions of this Agreement shall be in writing, including by
facsimile, and shall be deemed to have been received on the date of personal
delivery, on the third day after deposit in the U.S. mail if mailed by
registered or certified mail, postage prepaid and return receipt requested, on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery or when
delivered by facsimile transmission, and shall be addressed as follows (or to
such other address as any party may request by written notice):
if to Cumulus: c/o Cumulus Broadcasting, Inc.
0000 Xxxxxxxxx Xxxx XX
Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
with a copy (which shall not
constitute notice) to: Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
if to NextMedia: Xx. Xxxxxx Xxxxxx
NextMedia Operating, Inc.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 000-X
Xxxxxxxxx, XX 00000
with a copy (which shall not
constitute notice) to: Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx & Associates, P.A.
0 XX Xxxxx Xxxxxx, Xxxxx 0000
00
Xxxxx, XX 00000
if to the Trust: c/o Xxxx Xxxxxx Ade
0 Xxxxx Xxxx Xxxxx
Xxxxxx Xxxx, XX 00000
with a copy (which shall not
constitute notice) to: Xxxxxxx X. Xxxxxx, Esq.
X.X. Xxx 000000
Xxxxx Xxxxxxx, XX 00000-0000
20.9. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
20.10. No Third Party Beneficiaries. Nothing herein expressed or implied
----------------------------
is intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
20.11. Severability. The parties agree that if one or more provisions
------------
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
20.12. Entire Agreement. This Agreement embodies the entire agreement and
----------------
and understanding of the parties hereto and supersedes any and all prior
agreements, arrangements and understandings relating to the matters provided for
herein. This Agreement does not supersede any confidentiality agreement relating
to the Cumulus Stations or the Trust Station.
[REMAINDER OF PAGE INTENTIONALLY OMITTED]
37
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
CUMULUS BROADCASTING, INC.,
a ___________ corporation
By: ________________________________
____________________,___________
CUMULUS WIRELESS SERVICES INC.,
a____________corporation
By: ________________________________
____________________,___________
CUMULUS LICENSING CORP.,
a ___________ corporation
By: ________________________________
____________________,___________
NEXTMEDIA OPERATING, INC.,
a Delaware corporation
By: ________________________________
Xxxxxxx X. Xxxxxxxxx, Secretary
MYRTLE BEACH STATIONS TRUST,
a South Carolina Trust
By: __________________________
Xxxx Xxxxxx Ade, Trustee
38
