ASSIGNMENT OF OPTION TO PURCHASE
RADIO STATION WNVE(FM) AND CONSENT
This Assignment and Assumption of Option to Purchase Radio Station
WNVE(FM) and Consent (the "Assignment") is made as of December 23, 1996, by and
among American Radio Systems Corporation (successor by merger to American Radio
Systems, Inc., a Massachusetts corporation) ("Assignor"), Citicasters Co., an
Ohio corporation ("Assignee"), and The Great Lakes Wireless Talking Machine
Limited Liability Company, a New York limited liability company ("GLW") under
the following circumstances:
A. Assignor and GLW entered into an Option Agreement dated September
28, 1995, a copy of which is attached hereto as Exhibit A (the "Option
Agreement"), pursuant to which GLW granted to Assignor an option to purchase the
licenses and broadcasting equipment of WNVE(FM), South Bristol, New York (the
"Station") and the right to utilize the service mark "The Nerve" within the
Rochester, New York radio market.
B. Assignee is a party to an Asset Exchange Agreement (the "Exchange
Agreement"), dated December 23, 1996, with Assignor and American Radio Systems
License Corp. ("American License" and together with Assignor, the "American
Parties"), pursuant to which the American Parties have agreed to exchange
certain assets with Assignee.
C. In connection with the transactions contemplated by the Exchange
Agreement, Assignor wishes to assign all of its right, title and interest in the
Option Agreement and Assignee wishes to assume and agrees to perform all of
Assignor's obligations under the Option Agreement.
D. GLW is willing to consent to the assignment.
E. American, GLW and The Lincoln Group, L.P. are parties to a consent
decree (the "Consent Decree") as reflected in a Final Judgment that is expected
to be entered in January 1997, in United States of America and State of New York
vs. American Radio Systems Corporation, The Lincoln Group, L.P. and Great Lake
Wireless Talking Machine LLC, which Final Judgment has been filed in the United
States District Court for the District of Columbia. A copy of the Consent Decree
is attached as Exhibit B.
ACCORDINGLY, in consideration of the foregoing premises and agreements
contained herein, the parties hereto agree as follows:
Section 1. Condition to Effectiveness of Assignment. This Assignment
shall not become effective until approved by the United States pursuant to
Article VI of the Consent Decree. The date of such approval is referred to
herein as the "Effective Date".
Section 2. Assignment. Assignor assigns and transfers as of the
Effective Date to the Assignee all of the Assignor's right, title and interest
in the Option Agreement.
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Section 3. Representations and Warranties of Assignor. Assignor hereby
warrants and represents to Assignee as follows:
3.1 The execution, delivery, and performance by Assignor of
this Assignment have been duly authorized by all necessary corporate action and
will not contravene any law or any governmental rule or order binding on
Assignor. Assignor has duly executed and delivered this Assignment and it is the
valid and binding obligation of Assignor enforceable according to its terms.
3.2 Assignor has given no "Election Notice" (as defined in the
Option Agreement) to GLW, and agrees that it will not give such an Election
Notice for so long as this Assignment is in effect.
Section 4. Representations and Warranties of Assignee. Assignee hereby
warrants and represents to Assignor that the execution, delivery and performance
by Assignee of this Assignment have been duly authorized by all necessary
corporate action and will not contravene any law or any governmental rule or
order binding on Assignee. Assignee has duly executed and delivered this
Assignment and it is the valid and binding obligation of Assignee enforceable
according to its terms.
Section 5. Consent of GLW. GLW by executing this Assignment xxxxxx
agrees as follows:
5.1 GLW consents to the assignment to Assignee of Assignor's
rights and obligations under the Option Agreement as of the Effective Date.
5.2 GLW represents and warrants to Assignee that (i) Assignor
is not in default under the terms and conditions of the Option Agreement; (ii)
no event has occurred which now or will hereafter give GLW the right to
terminate the Option Agreement; and (iii) GLW has received no Election Notice
from Assignor.
5.3 GLW hereby waives any default under the Option Agreement
which may be created by this Assignment.
Section 6. Joint Sales Agreement. The parties agree that simultaneously
with the commencement of any Time Brokerage Agreement that may be entered into
by and between GLW and Assignee with respect to the Station, any Joint Sales
Agreement between Assignor and GLW that may then be in effect with respect to
the Station shall terminate.
Section 7. Termination. In the event the United States does not approve
this Assignment, then this Assignment shall terminate and be of no force or
effect; the parties agree to take such reasonable actions as may be necessary to
obtain such approval.
Section 8. Binding Effect. This Assignment shall be binding upon and
inure to the benefit of the respective legal representatives, successors and
assigns of the parties hereto.
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Section 9. Governing Law. All acts and transactions hereunder and the
rights and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the domestic laws of the State of New York.
Section 10. Execution and Counterparts. This Assignment may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto through their respective duly
authorized representatives have executed this Assignment as of the day first
above written.
AMERICAN RADIO SYSTEMS CITICASTERS CO.
CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxx Title: Senior Vice President
Title: Chief Executive Officer
THE GREAT LAKES WIRELESS
TALKING MACHINE LIMITED
LIABILITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Member
