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EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of March 5,
2000, among the company or companies designated as Seller on the signature page
hereto (collectively, "Seller") and the company or companies designated as Buyer
on the signature page hereto (collectively, "Buyer").
Recitals
A. Seller owns and operates the following radio broadcast stations
(collectively, the "Stations") pursuant to certain authorizations issued by the
Federal Communications Commission (the "FCC"):
WHKR(FM), Rockledge, Florida
KHAK(FM), Cedar Rapids, Iowa
KDAT(FM), Cedar Rapids, Iowa
KRNA(FM), Iowa City, Iowa
B. Subject to the terms and conditions set forth herein, Buyer desires to
acquire the Station Assets (defined below).
C. Clear Channel Communications, Inc. (Seller's parent), CCU Merger Sub,
Inc. and AMFM Inc. are parties to an Agreement and Plan of Merger dated October
2, 1999 (the "AMFM Agreement").
Agreement
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: PURCHASE OF ASSETS
1.1. Station Assets. On the terms and subject to the conditions hereof, on
the Closing Date (defined below), Seller shall sell, assign, transfer, convey
and deliver to Buyer, and Buyer shall purchase and acquire from Seller, all of
the right, title and interest of Seller in and to all of the assets, properties,
interests and rights of Seller of whatsoever kind and nature, real and personal,
tangible and intangible, which are used exclusively in the operation of the
Stations and specifically described in this Section 1.1, but excluding the
Excluded Assets as hereafter defined (the "Station Assets"):
(a) all licenses, permits and other authorizations which are issued to
Seller by the FCC with respect to the Stations (the "FCC Licenses") and
described on Schedule 1.1(a), including any renewals or modifications thereof
between the date hereof and Closing;
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(b) all equipment, electrical devices, antennae, 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
Stations and listed on Schedule 1.1(b), except any retirements or dispositions
thereof made between the date hereof and Closing in the ordinary course of
business and consistent with past practices of Seller (the "Tangible Personal
Property");
(c) all Time Sales Agreements and Trade Agreements (both defined in
Section 2.1), Real Property Leases (defined in Section 7.7), and other
contracts, agreements, and leases which are used in the operation of the
Stations and listed on Schedule 1.1(c), together with all contracts, agreements,
and leases made between the date hereof and Closing in the ordinary course of
business that are used in the operation of the Stations (the "Station
Contracts");
(d) all of Seller's rights in and to the Stations' call letters and
Seller'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 Stations and listed
on Schedule 1.1(d) (the "Intangible Property");
(e) Seller's rights in and to all the files, documents, records, and
books of account (or copies thereof) relating exclusively to the operation of
the Stations, including the 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 Excluded Assets (defined below); and
(f) any real property which is used exclusively in the operation of the
Stations (including any of Seller's appurtenant easements and improvements
located thereon) and described on Schedule 1.1(f) (the "Real Property").
The Station Assets shall be transferred to Buyer free and clear of
liens, claims and encumbrances ("Liens") except for (i) Assumed Obligations
(defined in Section 2.1), (ii) liens for taxes not yet due and payable and for
which Buyer receives a credit pursuant to Section 3.3, (iii) such liens,
easements, rights of way, building and use restrictions, exceptions,
reservations and limitations that do not in any material respect detract from
the value of the property subject thereto or impair the use thereof in the
ordinary course of the business of the Stations, and (iv) any items listed on
Schedule 1.1(b) (collectively, "Permitted Liens").
1.2. Excluded Assets. Notwithstanding anything to the contrary contained
herein, the Station Assets shall not include the following assets along with all
rights, title and interest therein (the "Excluded Assets"):
(a) all cash and cash equivalents of Seller, including without
limitation certificates of deposit, commercial paper, treasury bills, marketable
securities, asset or money market accounts and all such similar accounts or
investments;
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(b) all accounts receivable or notes receivable arising in the
operation of the Stations prior to Closing;
(c) all tangible and intangible personal property of Seller disposed of
or consumed in the ordinary course of business of Seller between the date of
this Agreement and Closing;
(d) all Station Contracts that terminate or expire prior to Closing in
the ordinary course of business of Seller;
(e) Seller's name, 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 Seller, duplicate copies of
the records of the Stations, and all records not relating exclusively to the
operation of the Stations;
(f) contracts of insurance, and all insurance proceeds or claims made
thereunder;
(g) except as set forth in Section 10.4, 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 Seller; and
(h) all rights, properties and assets described on Schedule 1.2(h), and
all rights, properties and assets not specifically described in Section 1.1.
1.3. Lease Agreements. At Closing, Buyer and Seller shall enter into the
lease agreements described on Schedule 1.2(h) pursuant to tower space lease(s)
in the form of Exhibit A hereto.
ARTICLE 2: ASSUMPTION OF OBLIGATIONS
2.1. Assumed Obligations. On the Closing Date, Buyer shall assume the
obligations of Seller (the "Assumed Obligations") arising after Closing under
the Station Contracts, including without limitation all agreements for the sale
of advertising time on the Stations for cash in the ordinary course of business
("Time Sales Agreements") and all agreements for the sale of advertising time on
the Stations for non-cash consideration ("Trade Agreements").
2.2. Retained Obligations. Buyer does not assume or agree to 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 Seller of any nature
whatsoever whether accrued, absolute, contingent or otherwise and whether or not
disclosed to Buyer, other than the Assumed Obligations (the "Retained
Obligations").
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ARTICLE 3: PURCHASE PRICE
3.1. Purchase Price. In consideration for the sale of the Station Assets to
Buyer, in addition to the assumption of the Assumed Obligations, Buyer shall at
Closing (defined below) deliver to Seller by wire transfer of immediately
available funds, Forty-Two Million Dollars ($42,000,000), subject to adjustment
pursuant to Section 3.3 (the "Purchase Price").
3.2. Deposit. Within three (3) business days of the date of this Agreement
(with no Cure Period (defined below)), Buyer shall deposit an amount equal to
10% of the Purchase Price (the "Deposit") with Bank of America (the "Escrow
Agent") pursuant to the Escrow Agreement (the "Escrow Agreement") of even date
herewith among Buyer, Seller and the Escrow Agent. At Closing, the Deposit shall
be applied to the Purchase Price and any interest accrued thereon shall be
disbursed to Buyer (if in cash) or returned to Buyer (if a letter of credit). If
this Agreement is terminated by Seller due to Buyer's failure to consummate the
Closing on the Closing Date in accordance with this Agreement or if this
Agreement is otherwise terminated by Seller pursuant to Section 16.1(c), the
Deposit and any interest accrued thereon shall be disbursed to Seller as partial
payment of liquidated damages pursuant to Section 16.3. If this Agreement is
terminated for any other reason, the Deposit and any interest accrued thereon
shall be disbursed to Buyer. Buyer may make the Deposit by delivering to the
Escrow Agent (as beneficiary) a letter of credit (the "L/C") issued by Bank of
Nova Scotia (the "Issuing Bank") in the stated amount of 10% of the Purchase
Price, without draw conditions and with an expiry date of not less than 6 months
(and otherwise in a form reasonably satisfactory to Seller). If the Deposit is
to be disbursed to Seller as provided in this Agreement, then the Escrow Agent
shall present the L/C to the Issuing Bank and draw the entire stated amount and
such proceeds shall be disbursed to Seller. If the L/C is not extended prior to
the date one month before its expiry date, then the Escrow Agent shall present
the L/C to the Issuing Bank and draw the entire stated amount and such proceeds
shall be held by the Escrow Agent as a cash deposit.
3.3. Prorations and Adjustments. Except as otherwise provided herein, all
deposits, reserves and prepaid and deferred income and expenses relating to the
Station Assets or the Assumed Obligations and arising from the conduct of the
business and operations of the Stations shall be prorated between Buyer and
Seller in accordance with generally accepted accounting principles 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 taxes arising by reason of the transfer of the Station
Assets as contemplated hereby which shall be paid as set forth in Section 13.1),
business and license fees, music and other license fees (including any
retroactive adjustments thereof), utility expenses, amounts due or to become due
under Station 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 3.3, 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
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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 Seller and one-half by Buyer.
3.4. Allocation. The Purchase Price shall be allocated among the Station
Assets in a manner as mutually agreed between the parties based upon an
appraisal prepared by Bond & Xxxxxx (whose fees shall be paid one-half by Seller
and one-half by Buyer). Seller and Buyer agree to use the allocations determined
pursuant to this Section 3.4 for all tax purposes, including without limitation,
those matters subject to Section 1060 of the Internal Revenue Code of 1986, as
amended.
ARTICLE 4: CLOSING
4.1. Closing. The consummation of the sale and purchase of the Station
Assets (the "Closing") shall occur on a date (the "Closing Date") and at a time
and place designated solely by Seller after FCC Consent (defined below), subject
to satisfaction or waiver of the conditions to Closing contained herein (other
than those to be satisfied at Closing). If requested by Seller, prior to Closing
the parties shall hold a pre-closing conference at a time and place designated
by Seller, 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
Closing is subject to and conditioned upon (i) prior FCC consent (the "FCC
Consent") to the assignment of the FCC Licenses to Buyer, (ii) United States
Department of Justice ("DOJ") prior approval (the "DOJ Consent") of the
transactions contemplated hereby, including without limitation any such approval
as may be necessary to enable Seller to consummate the merger under the AMFM
Agreement, and (iii) expiration or termination of any applicable waiting period
("HSR Clearance") under the HSR Act (defined below).
5.1. FCC. On a date designated by Seller, Buyer and Seller shall file an
application with the FCC (the "FCC Application") requesting the FCC Consent.
Buyer and Seller shall diligently prosecute the FCC Application and otherwise
use their best efforts to obtain the FCC Consent as soon as possible. If the FCC
Consent imposes upon Buyer any condition (including without limitation any
divestiture condition), Buyer shall timely comply therewith.
5.2. HSR. If not previously filed, then within five (5) business days after
the execution of this Agreement, Buyer and Seller shall make any required
filings with the Federal Trade Commission and the DOJ pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
with respect to the transactions contemplated hereby (including a request for
early termination of the waiting period thereunder), and shall thereafter
promptly respond to all requests received from such agencies for additional
information or documentation.
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5.3. General. Buyer and Seller shall notify each other of all documents
filed with or received from any governmental agency with respect to this
Agreement or the transactions contemplated hereby. Buyer and Seller shall
furnish each other with such information and assistance as such the other may
reasonably request in connection with their preparation of any governmental
filing hereunder. If Buyer becomes aware of any fact relating to it which would
prevent or delay the FCC Consent, the DOJ Consent or HSR Clearance, Buyer shall
promptly notify Seller thereof and take such steps as necessary to remove such
impediment, including but not limited to divesting any stations and terminating
any agreements to acquire or program or market any stations.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to Seller:
6.1. Organization and Standing. Buyer 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 Station Assets are
located. Buyer 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 Buyer pursuant hereto (collectively, the "Buyer Ancillary
Agreements"), to consummate the transactions contemplated hereby and thereby and
to comply with the terms, conditions and provisions hereof and thereof.
6.2. Authorization. The execution, delivery and performance of this
Agreement and the Buyer Ancillary Agreements by Buyer have been duly authorized
and approved by all necessary action of Buyer and do not require any further
authorization or consent of Buyer. This Agreement is, and each Buyer Ancillary
Agreement when executed and delivered by Buyer and the other parties thereto
will be, a legal, valid and binding agreement of Buyer 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).
6.3. No Conflicts Neither the execution and delivery by Buyer of this
Agreement and the Buyer Ancillary Agreements or the consummation by Buyer of any
of the transactions contemplated hereby or thereby nor compliance by Buyer with
or fulfillment by Buyer of the terms, conditions and provisions hereof or
thereof will: (i) conflict with any organizational documents of Buyer or any
law, judgment, order or decree to which Buyer is subject; or (ii) require the
approval, consent, authorization or act of, or the making by Buyer 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 and DOJ Consent, and, if applicable, HSR Clearance.
6.4. Qualification. Buyer is legally, financially and otherwise qualified to
be the licensee of, acquire, own and operate the Stations under the
Communications Act of 1934, as
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amended (the "Communications Act") and the rules, regulations and policies of
the FCC. There are no facts that would, under existing law and the existing
rules, regulations, policies and procedures of the FCC, disqualify Buyer as an
assignee of the FCC Licenses or as the owner and operator of the Stations. No
waiver of any FCC rule or policy is necessary for the FCC Consent to be
obtained. There is no action, suit or proceeding pending or threatened against
Buyer which questions the legality or propriety of the transactions contemplated
by this Agreement or could materially adversely affect Buyer's ability to
perform its obligations hereunder. Buyer has and will have available on the
Closing Date sufficient funds to enable it to consummate the transactions
contemplated hereby.
6.5. No 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 Buyer or any party acting on Buyer's behalf.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Buyer:
7.1. Organization. Seller 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 Station Assets are
located. Seller 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 Seller pursuant hereto (collectively, the "Seller Ancillary
Agreements"), to consummate the transactions contemplated hereby and thereby and
to comply with the terms, conditions and provisions hereof and thereof.
7.2. Authorization. The execution, delivery and performance of this
Agreement and the Seller Ancillary Agreements by Seller have been duly
authorized and approved by all necessary action of Seller and do not require any
further authorization or consent of Seller. This Agreement is, and each Seller
Ancillary Agreement when executed and delivered by Seller and the other parties
thereto will be, a legal, valid and binding agreement of Seller 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).
7.3. No Conflicts. Neither the execution and delivery by Seller of this
Agreement and the Seller Ancillary Agreements or the consummation by Seller of
any of the transactions contemplated hereby or thereby nor compliance by Seller
with or fulfillment by Seller of the terms, conditions and provisions hereof or
thereof will: (i) conflict with any organizational documents of Seller or any
law, judgment, order, or decree to which Seller is subject or, except as set
forth on Schedule 1.1(c), any Station Contract; or (ii) require the approval,
consent,
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authorization or act of, or the making by Seller of any declaration, filing or
registration with, any third party or any foreign, federal, state or local
court, governmental or regulatory authority or body, except the FCC Consent and
DOJ Consent and, if applicable, HSR Clearance.
7.4. FCC Licenses. Seller (or one of the companies comprising Seller) is the
holder of the FCC Licenses described on Schedule 1.1(a). The FCC Licenses are in
full force and effect and have not been revoked, suspended, canceled, rescinded
or terminated and have not expired. There is not pending any action by or before
the FCC to revoke, suspend, cancel, rescind or materially adversely modify any
of the FCC Licenses (other than proceedings to amend FCC rules of general
applicability), and there is not now issued or outstanding, by or before the
FCC, any order to show cause, notice of violation, notice of apparent liability,
or notice of forfeiture against Seller with respect to the Stations. The
Stations are operating in compliance in all material respects with the FCC
Licenses, the Communications Act, and the rules, regulations and policies of the
FCC.
7.5. Taxes. Seller has, in respect of the 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.
7.6. Personal Property. Schedule 1.1(b) contains a list of all material
items of Tangible Personal Property included in the Station Assets. Seller has
title to the Tangible Personal Property free and clear of Liens other than
Permitted Liens.
7.7. Real Property. Schedule 1.1(f) contains a description of all Real
Property included in the Station Assets. Seller has fee simple title to the
owned Real Property ("Owned Real Property") free and clear of Liens other than
Permitted Liens. Schedule 1.1(f) includes a description of each lease of Real
Property or similar agreement included in the Station Assets (the "Real Property
Leases"). The Owned Real Property includes, and the Real Property Leases
provide, access to the Stations' facilities. To Seller's knowledge, the Real
Property is not subject to any suit for condemnation or other taking by any
public authority.
7.8. Contracts. Each of the Station Contracts (including without limitation
each of the Real Property Leases) is in effect and is binding upon Seller and,
to Seller's knowledge, the other parties thereto (subject to bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally). Seller has performed its
obligations under each of the Station Contracts in all material respects, and is
not in material default thereunder, and to Seller's knowledge, no other party to
any of the Station Contracts is in default thereunder in any material respect.
7.9. Environmental. Except as set forth in any environmental report
delivered by Seller to Buyer prior to the date of this Agreement and except as
set forth on Schedule 1.1(f), to Seller's knowledge, no hazardous or toxic
substance or waste regulated under any applicable environmental, health or
safety law has been generated, stored, transported or released on, in,
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from or to the Real Property included in the Station Assets. Except as set forth
in any environmental report delivered by Seller to Buyer prior to the date of
this Agreement and except as set forth on Schedule 1.1(f), to Seller's
knowledge, Seller has complied in all material respects with all environmental,
health and safety laws applicable to the Stations.
7.10. Intangible Property. Schedule 1.1(d) contains a description of the
material Intangible Property included in the Station Assets. Except as set forth
on Schedule 1.1(d), Seller has received no notice of any claim that its use of
the Intangible Property infringes upon any third party rights. Except as set
forth on Schedule 1.1(d), Seller owns or has the right to use the Intangible
Property free and clear of Liens other than Permitted Liens.
7.11. Compliance with Law. Seller has complied in all material respects with
all laws, regulations, rules, writs, injunctions, ordinances, franchises,
decrees or orders of any court or of any foreign, federal, state, municipal or
other governmental authority which are applicable to the operation of the
Stations. There is no action, suit or proceeding pending or threatened against
Seller in respect of the Stations that will subject Buyer to liability or which
questions the legality or propriety of the transactions contemplated by this
Agreement. To Seller's knowledge, there are no governmental claims or
investigations pending or threatened against Seller in respect of the Stations
(except those affecting the industry generally).
7.12. No 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 Seller or any party acting on Seller's behalf.
ARTICLE 8: ACCOUNTS RECEIVABLE
8.1. Accounts Receivable. All accounts receivable arising prior to the
Closing Date in connection with the operation of the Stations, including but not
limited to accounts receivable for advertising revenues for programs and
announcements performed prior to the Closing Date and other broadcast revenues
for services performed prior to the Closing Date, shall remain the property of
Seller (the "Accounts Receivable") and Buyer shall not acquire any right or
interest therein. For a period of six months from Closing (the "Collection
Period"), Buyer shall collect the Accounts Receivable in the normal and ordinary
course of Buyer's business and shall apply all such amounts collected to the
debtor's oldest account receivable first. Buyer'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 Collection Period,
neither Seller or 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 Accounts Receivable that
are paid directly to Seller shall be retained by Seller. Within ten calendar
days after the end of each month, Buyer shall make a payment to Seller equal to
the amount of all collections of Accounts Receivable during the preceding month.
At the end of the Collection Period, any remaining Accounts Receivable shall be
returned to Seller for collection.
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ARTICLE 9: COVENANTS OF SELLER
9.1. Seller's Covenants. Seller covenants and agrees with respect to the
Stations that, between the date hereof and Closing, except as permitted by this
Agreement or with the prior written consent of Buyer, which shall not be
unreasonably withheld, Seller shall:
(a) operate the Stations in the ordinary course of business consistent
with past practice 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 practice, sell, lease or dispose of or agree to sell, lease or dispose
of any of the Station Assets, or create, assume or permit to exist any Liens
upon the Station Assets, except for Permitted Liens; and
(c) furnish Buyer with such information relating to the Station Assets
as Buyer may reasonably request, at Buyer's expense and provided such request
does not interfere unreasonably with the business of the Stations.
ARTICLE 10: JOINT COVENANTS
Buyer and Seller hereby covenant and agree that between the date hereof and
Closing:
10.1. 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.
10.2. Control of Stations. Buyer shall not, directly or indirectly, control,
supervise or direct the operations of the Stations prior to Closing. Such
operations, including complete control and supervision of all Station programs,
employees and policies, shall be the sole responsibility of Seller.
10.3. Consents to Assignment. The parties shall use commercially reasonable
efforts to obtain any third party consents necessary for the assignment of any
Station Contract (which shall not require any payment to any such third party).
To the extent that any Station Contract may not be assigned without the consent
of any third party, and such consent is not obtained prior to Closing, this
Agreement and any assignment executed pursuant hereto shall not constitute an
assignment thereof, but to the extent permitted by law shall constitute an
equitable assignment by Seller and assumption by Buyer of Seller's rights and
obligations under the applicable Station
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Contract, with Seller making available to Buyer the benefits thereof and Buyer
performing the obligations thereunder on Seller's behalf.
10.4. Employee Matters.
(a) Prior to Closing, Seller shall deliver to Buyer a list of employees
of the Stations that Seller does not intend to retain after Closing. Buyer may
interview and elect to hire such listed employees, but not any other employees
of Seller. Buyer is obligated to hire only those employees that are under
employment contracts (and assume Seller's obligations and liabilities under such
employment contracts) which are included in the Station Contracts. With respect
to employees potentially to be hired by Buyer, to the extent permitted by law
Seller shall provide Buyer access to its personnel records and such other
information as Buyer may reasonably request prior to Closing. With respect to
employees hired by Buyer ("Transferred Employees"), Seller shall be responsible
for the payment of all compensation and accrued employee benefits payable by it
until Closing and thereafter Buyer shall be responsible for all such obligations
payable by it. Buyer shall cause all Transferred Employees to be eligible to
participate in its "employee welfare benefit plans" and "employee pension
benefit plans" (as defined in Sections 3(1) and 3(2) of ERISA, respectively) in
which Buyer's similarly-situated employees are generally eligible to
participate; provided, however, that all Transferred Employees and their spouses
and dependents shall be eligible for coverage immediately after Closing (and
shall not be excluded from coverage under any employee welfare benefit plan that
is a group health plan on account of any pre-existing condition) to the extent
provided under such employee welfare benefit plans. For purposes of any length
of service requirements, waiting periods, vesting periods or differential
benefits based on length of service in any such employee welfare benefit plans
for which Transferred Employees may be eligible after Closing, Buyer shall
ensure, to the extent permitted by applicable law (including, without
limitation, ERISA and the Code), that service with Seller shall be deemed to
have been service with the Buyer. No such service credit must be granted with
respect to participation or eligibility in any employee pension benefit plan. In
addition, Buyer shall ensure, to the extent permitted by applicable law
(including, without limitation, ERISA and the Code) that Transferred Employees
receive credit under any welfare benefit plan of Buyer for any deductibles or
co-payments paid by Transferred Employees and their spouses and dependents for
the current plan year under a plan maintained by Seller. Notwithstanding any
other provision contained herein, Buyer shall grant credit for all unused sick
leave accrued by Transferred Employees on the basis of their service during the
current calendar year as employees of Seller. Notwithstanding any other
provision contained herein, Buyer shall assume and discharge Seller's
liabilities for the payment of all unused vacation leave accrued by Transferred
Employees on the basis of their service during the current calendar year as
employees of Seller.
(b) From and after Closing, Buyer shall cooperate with the reasonable
requests of Seller to continue to withhold from the pay checks of Transferred
Employees' who have outstanding loan balances in the Seller's 401(k) Savings
Plan and Buyer shall remit such withheld amounts to the Seller in a timely
fashion such that the outstanding loans do not go into default.
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10.5. 1031 Exchange. At or prior to Closing, Seller may assign its 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, Seller shall
promptly give written notice thereof to Buyer, and Buyer shall cooperate with
the reasonable requests of Seller and any Qualified Intermediary in connection
therewith. Without limiting the generality of the foregoing, if Seller gives
notice of such assignment, Buyer shall (i) promptly provide Seller with written
acknowledgment of such notice and (ii) at Closing, pay the Purchase Price (or
any portion thereof designated by the Qualified Intermediary) to or on behalf of
the Qualified Intermediary (which payment shall, to the extent thereof, satisfy
the obligations of Buyer to make such payment hereunder). Seller's assignment to
a Qualified Intermediary will not relieve Seller of any of its duties or
obligations herein. Except for the obligations of Buyer set forth in this
Section, Buyer shall not have any liability or obligation to Seller for the
failure of the contemplated exchange to qualify as a like-kind exchange under
Section 1031 of the Internal Revenue Code unless such failure is the result of
the material breach or default by Buyer under this Agreement.
10.6. Trust. Notwithstanding anything in this Agreement to the contrary,
Seller may at it option assign this Agreement (in whole or part) and assign and
transfer the Station Assets (in whole or in part) to a trustee to hold and
operate pursuant to a trust agreement, provided such trustee assumes Seller's
duties and obligations hereunder with respect to the Station Assets held in such
trust.
ARTICLE 11: CONDITIONS OF CLOSING BY BUYER
The obligations of Buyer hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
11.1. Representations, Warranties and Covenants. The representations and
warranties of Seller 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 Seller at or prior to Closing shall have been
complied with or performed in all material respects. Buyer shall have received a
certificate dated as of the Closing Date from Seller, executed by an authorized
officer of Seller to the effect that the conditions set forth in this Section
have been satisfied.
11.2. Governmental Consents. The FCC Consent and DOJ Consent, and, if
applicable, HSR Clearance, shall have been obtained, and no court or
governmental order prohibiting Closing shall be in effect.
ARTICLE 12: CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
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12.1. Representations, Warranties and Covenants. The representations and
warranties of Buyer 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 Buyer at or prior to Closing shall have been
complied with or performed in all material respects. Seller shall have received
a certificate dated as of the Closing Date from Buyer, executed by an authorized
officer of Buyer, to the effect that the conditions set forth in this Section
have been satisfied.
12.2. Governmental Consents. The FCC Consent and DOJ Consent, and, if
applicable, HSR Clearance, shall have been obtained, and no court or
governmental order prohibiting Closing shall be in effect.
12.3. AMFM Closing. The closing under the AMFM Agreement shall have been
consummated.
ARTICLE 13: EXPENSES
13.1. 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 Station Assets
shall be paid by Buyer, (ii) all FCC filing fees shall be paid equally by Buyer
and Seller, and (iii) all HSR Act filing fees, if any, shall be paid by Buyer.
ARTICLE 14: DOCUMENTS TO BE DELIVERED AT CLOSING
14.1. Seller's Documents. At Closing, Seller shall deliver or cause to be
delivered to Buyer:
(i) certified copies of resolutions authorizing its execution, delivery
and performance of this Agreement, including the consummation of the
transactions contemplated hereby;
(ii) the certificate described in Section 11.1; and
(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 the Station Assets to Buyer,
free and clear of Liens, except for Permitted Liens.
14.2. Buyer's Documents. At Closing, Buyer shall deliver or cause to be
delivered to Seller:
(i) the certified copies of resolutions authorizing its execution,
delivery and performance of this Agreement, including the consummation of the
transactions contemplated hereby;
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(ii) the certificate described in Section 12.1; and
(iii) such documents and instruments of assumption as may be necessary
to assume the Assumed Obligations, and the Purchase Price in accordance with
Section 3.1 hereof.
ARTICLE 15: SURVIVAL; INDEMNIFICATION.
15.1. Survival. The covenants, agreements, representations and warranties in
this Agreement shall survive Closing for a period of six (6) months from the
Closing Date whereupon they shall expire and be of no further force or effect,
except those under (i) this Article 15 that relate to Damages (defined below)
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 (Assumed
Obligations), 3.3 (Adjustments), 3.4 (Allocation), 8.1 (Accounts Receivable) and
13.1 (Expenses), and indemnification obligations with respect to such
provisions, which shall survive until performed.
15.2. Indemnification.
(a) From and after the Closing, Seller shall defend, indemnify and hold
harmless Buyer from and against any and all losses, costs, damages, liabilities
and expenses, including reasonable attorneys' fees and expenses ("Damages")
incurred by Buyer arising out of or resulting from: (i) any breach or default by
Seller under this Agreement; (ii) the Retained Obligations; or (iii) the
business or operation of the Stations before Closing; provided, however, that,
except for the Expense Provisions (which shall not be subject to such
limitations), (i) Seller shall have no liability to Buyer hereunder until, and
only to the extent that, Buyer's aggregate Damages exceed $500,000 and (ii) the
maximum liability of Seller hereunder shall be $4,000,000.
(b) From and after the Closing, Buyer shall defend, indemnify and hold
harmless Seller from and against any and all Damages incurred by Seller arising
out of or resulting from: (i) any breach or default by Buyer under this
Agreement; (ii) the Assumed Obligations; or (iii) the business or operation of
the Stations after Closing.
15.3. 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.
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(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 (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.
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ARTICLE 16: TERMINATION
16.1. Termination. This Agreement may be terminated at any time prior to
Closing as follows:
(a) by mutual written consent of Buyer and Seller;
(b) by written notice of Buyer to Seller if Seller (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 agreements herein contained and such
breach or default is not cured within the Cure Period (defined below);
(c) by written notice of Seller to Buyer if Buyer (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 agreements herein contained and such
breach or default is not cured within the Cure Period (defined below);
(d) by written notice of Buyer to Seller, or by Seller to Buyer, if the
FCC denies the FCC Application;
(e) by written notice of Seller to Buyer if the Closing shall not have
been consummated on or before the date four months after the date of this
Agreement; or
(f) by written notice of Seller to Buyer if the AMFM Agreement is
terminated or expires.
The term "Cure Period" as used herein means a period commencing the date
Buyer or Seller 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. Notwithstanding anything contained
herein to the contrary, Section 13.1 shall survive any termination of this
Agreement.
16.2. Remedies. The parties recognize that if either party refuses to
consummate the Closing pursuant to the provisions of this Agreement or either
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; provided however, that Seller may elect to recover liquidated damages in
lieu of obtaining specific performance. If any action is brought by the
Non-Breaching Party to enforce this Agreement, the Breaching Party shall waive
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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, provided that the Non-Breaching Party is
successful in such lawsuit.
16.3. Liquidated Damages. If Seller terminates this Agreement due to Buyer's
failure to consummate the Closing on the Closing Date in accordance with this
Agreement or if this Agreement is otherwise terminated by Seller pursuant to
Section 16.1(c), then Buyer shall pay Seller as liquidated damages an amount
equal to 25% of the Purchase Price. It is understood and agreed that such
liquidated damages amount represents Buyer's and Seller's reasonable estimate of
actual damages and does not constitute a penalty.
ARTICLE 17: MISCELLANEOUS PROVISIONS
17.1. Casualty Loss. In the event any loss or damage to the Tangible
Personal Property or Real Property exists on the Closing Date, Buyer and Seller
shall consummate the Closing and Seller shall assign to Buyer the proceeds of
any insurance payable to Seller on account of such damage or loss.
17.2. Further Assurances. After the Closing, Seller shall from time to time,
at the request of and without further cost or expense to Buyer, execute and
deliver such other instruments of conveyance and transfer and take such other
actions as may reasonably be requested in order to more effectively consummate
the transactions contemplated hereby to vest in Buyer good title to the Station
Assets, and Buyer shall from time to time, at the request of and without further
cost or expense to Seller, execute and deliver such other instruments and take
such other actions as may reasonably be requested in order more effectively to
relieve Seller of any obligations being assumed by Buyer hereunder.
17.3. Assignment. Except as set forth in Sections 10.5 (1031 Exchange) and
10.6 (Trust), neither party may assign this Agreement without the prior written
consent of the other party hereto. With respect to any permitted assignment, the
parties shall take all such actions as are reasonably necessary to effectuate
such assignment, including but not limited to cooperating in any appropriate
filings with the FCC or other governmental authorities. All covenants,
agreements, statements, representations, warranties and indemnities in this
Agreement by and on behalf of any of the parties hereto shall bind and inure to
the benefit of their respective successors and permitted assigns of the parties
hereto.
17.4. 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.
17.5. 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.
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17.6. Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of Texas without giving effect to the
choice of law provisions thereof.
17.7. 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 Seller: c/o Clear Channel Broadcasting, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy (which shall
not constitute notice) to: Wiley, Rein & Fielding
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
if to Buyer: Cumulus Broadcasting, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
with a copy (which shall
not constitute notice) to: Cumulus Broadcasting, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
17.8. 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.
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17.9. 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.
17.10. 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.
17.11. Entire Agreement. This Agreement embodies the entire agreement 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
Stations.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
SELLER: CAPSTAR RADIO OPERATING COMPANY
By:
------------------------------------
Name:
Title:
CAPSTAR TX LIMITED PARTNERSHIP
By:
------------------------------------
Name:
Title:
BUYER: CUMULUS BROADCASTING, INC.
By:
------------------------------------
Xxxxxxx Xxxxxxx, Executive Chairman
CUMULUS LICENSING CORP.
By:
------------------------------------
Xxxxxxx Xxxxxxx, Executive Chairman
21
Schedules
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1.1(a) - FCC Licenses
1.1(b) - Tangible Personal Property
1.1(c) - Station Contracts
1.1(d) - Intangible Property
1.1(f) - Real Property
1.2(h) - Excluded Assets
Exhibits
--------
A - Form of Tower Space Lease
