1
EXHIBIT 10.18
ASSET EXCHANGE AGREEMENT
THIS ASSET EXCHANGE AGREEMENT (this "Agreement") is made as of March
12, 2000 among the company or companies designated as Clear Channel on the
signature page hereto (collectively, "Clear Channel") and the company or
companies designated as Exchange Party on the signature page hereto
(collectively, "Exchange Party").
Recitals
A. Clear Channel owns and operates the following radio broadcast
stations (collectively, the "Clear Channel Stations") pursuant to certain
authorizations issued by the Federal Communications Commission (the "FCC"):
WABT-FM, WGNA-AM, WGNA-FM, WQBJ-FM, WQBK-FM and WTMM-AM licensed to
Albany, New York; and
WGRD-FM, WLHT-FM and WTRV-FM licensed to Grand Rapids, Michigan.
B. Exchange Party owns and operates the following radio broadcast
stations (collectively, the "Exchange Party Stations") pursuant to certain
authorizations issued by the FCC:
WYHT-FM, WSWR-FM and WMAN-AM, licensed to Mansfield/Shelby, Ohio; and
KTPI-FM and KAVC-AM licensed to Mojave and Tehachapi (ie: Palmdale),
California; and
KATJ-FM, KZXY-FM, KIXA-FM, KROY-AM and KIXW-AM licensed to Victorville,
California; and
XXXX-FM, licensed to Lancaster, California.
C. Subject to the terms and conditions set forth herein, the parties
desire to exchange the Clear Channel Station Assets (defined below) and the
Exchange Party Station Assets (defined below). 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").
D. Clear Channel Communications, Inc. and AMFM Inc. (Clear Channel's
parent) and CCU Merger Sub, Inc. are parties to an Agreement and Plan of Merger
dated October 2, 1999 (the "AMFM Agreement").
2
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: EXCHANGE OF ASSETS
1.1. Clear Channel Station Assets. On the terms and subject to the
conditions hereof, on the Closing Date (defined below), Clear Channel shall
assign, transfer, convey and deliver to Exchange Party, and Exchange Party shall
acquire from Clear Channel, all of the right, title and interest of Clear
Channel in and to all of the assets, properties, interests and rights of Clear
Channel of whatsoever kind and nature, real and personal, tangible and
intangible, which are used in the operation of the Clear Channel Stations and
described in this Section 1.1, but excluding the Clear Channel Excluded Assets
as hereafter defined (the "Clear Channel Station Assets"):
(1)1 all licenses, permits and other authorizations which are
issued to Clear Channel by the FCC with respect to the Clear Channel Stations
(the "Clear Channel FCC Licenses") and described on Schedule 1.1(a), including
any renewals or modifications thereof between the date hereof and Closing;
(1)2 all equipment, electrical devices, towers, 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 in the operation of the Clear Channel
Stations including but not limited to those 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 Clear
Channel (the "Clear Channel Tangible Personal Property");
(1)3 all Clear Channel Time Sales Agreements and Clear Channel
Trade Agreements (both defined in Section 2.3), Clear Channel Real Property
Leases (defined in Section 6.7), and other contracts, agreements, and leases
which are used in the operation of the Clear Channel 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 Clear Channel Stations (the "Clear Channel Station
Contracts");
(1)4 all of Clear Channel's rights in and to the Clear Channel
Stations' call letters and Clear Channel's rights in and to the trademarks,
trade names, 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 Clear Channel Stations and listed on
Schedule 1.1(d) (the "Clear Channel Intangible Property");
(1)5 Clear Channel's rights in and to all the files, documents,
records, and books of account (or copies thereof) relating to the operation of
the Clear Channel Stations, including the Clear Channel Stations' local public
files, programming information and studies, blueprints,
3
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 Clear Channel Excluded
Assets (defined below); and
(1)6 any real property which is used in the operation of the
Clear Channel Stations (including any of Clear Channel's appurtenant easements
and improvements located thereon) and described on Schedule 1.1(f) (the "Clear
Channel Real Property").
The Clear Channel Station Assets shall be transferred to Exchange Party
free and clear of all liens, claims and encumbrances ("Liens") except for (i)
Exchange Party Assumed Obligations (defined below), (ii) liens for taxes not yet
due and payable and for which Exchange Party receives a credit pursuant to
Section 3.3, (iii) such liens (not related to Clear Channel indebtedness),
easements, rights of way, building and use restrictions, exceptions,
reservations and limitations common for properties of such nature that do not,
and are unlikely to, 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 Clear Channel Stations, and (iv) any items listed on Schedule
1.1(b) (collectively, "Clear Channel Permitted Liens").
1.2. Clear Channel Excluded Assets. Notwithstanding anything to the
contrary contained herein, the Clear Channel Station Assets shall not include
the following assets along with all rights, title and interest therein (the
"Clear Channel Excluded Assets"):
(2)1 all cash and cash equivalents of Clear Channel, including
without limitation certificates of deposit, commercial paper, treasury bills,
marketable securities, asset or money market accounts and all such similar
accounts or investments;
(2)2 all accounts receivable or notes receivable arising in the
operation of the Clear Channel Stations prior to Closing;
(2)3 all tangible and intangible personal property of Clear
Channel disposed of or consumed in the ordinary course of business of Clear
Channel between the date of this Agreement and Closing;
(2)4 all Clear Channel Station Contracts that terminate or expire
prior to Closing in the ordinary course of business of Clear Channel;
(2)5 Clear Channel'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 Clear Channel,
duplicate copies of the records of the Clear
3
4
Channel Stations, and all records not relating exclusively to the operation of
the Clear Channel Stations;
(2)6 contracts of insurance, and all insurance proceeds or claims
made thereunder;
(2)7 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 Clear Channel;
(2)8 all assets of Clear Channel of the nature described in
Section 1.1 above which are used exclusively in the operation of radio station
WNWZ-AM ("Retained Michigan Station");
(2)9 all assets of Clear Channel of the nature described in
Section 1.1 above which are used primarily in the operation of radio station
WXCR-FM ("Retained Albany Station").
(2)10 all rights, properties and assets described on Schedule
1.2(h) which schedule shall include any Clear Channel FM tower and FM tower site
not used exclusively by any of the Clear Channel Stations, and all rights,
properties and assets not specifically described in Section 1.1.
1.3. Exchange Party Station Assets. On the terms and subject to the
conditions hereof, on the Closing Date (defined below), Exchange Party shall
assign, transfer, convey and deliver to Clear Channel, and Clear Channel shall
acquire from Exchange Party, all of the right, title and interest of Exchange
Party in and to all of the assets, properties, interests and rights of Exchange
Party of whatsoever kind and nature, real and personal, tangible and intangible,
which are used in the operation of the Exchange Party Stations and described in
this Section 1.3, but excluding the Exchange Party Excluded Assets as hereafter
defined (the "Exchange Party Station Assets")(the parties acknowledge that the
schedules referred to in this Section and Section 1.4 ("Exchange Party
Schedules") are not attached to this Agreement. Exchange Party agrees to deliver
to Clear Channel all of the Exchange Party Schedules within ten (10) days of the
execution of this Agreement in form comparable to the schedules provided by
Clear Channel and attached to this Agreement and reasonably acceptable to Clear
Channel):
(3)1 all licenses, permits and other authorizations which are
issued to Exchange Party by the FCC with respect to the Exchange Party Stations
(the "Exchange Party FCC Licenses") including but not limited to those described
on Schedule 1.3(a), including any renewals or modifications thereof between the
date hereof and Closing;
(3)2 all equipment, electrical devices, towers, 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 in the operation
4
5
of the Exchange Party Stations including but not limited to those listed on
Schedule 1.3(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 Exchange Party (the "Exchange Party Tangible Personal
Property");
(3)3 all Exchange Party Time Sales Agreements and Exchange Party
Trade Agreements (both defined in Section 2.1), Exchange Party Real Property
Leases (defined in Section 7.7), and other contracts, agreements, and leases
which are used in the operation of the Exchange Party Stations and listed on
Schedule 1.3(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 Exchange Party Stations (the "Exchange Party
Station Contracts");
(3)4 all of Exchange Party's rights in and to the Exchange Party
Stations' call letters and Exchange Party's rights in and to the trademarks,
trade names, 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 Exchange Party Stations including but not
limited to those listed on Schedule 1.3(d) (the "Exchange Party Intangible
Property");
(3)5 Exchange Party's rights in and to all the files, documents,
records, and books of account (or copies thereof) relating to the operation of
the Exchange Party Stations, including but not limited to the Exchange Party
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 Exchange Party Excluded
Assets (defined below); and
(3)6 any real property which is used in the operation of the
Exchange Party Stations (including any of Exchange Party's appurtenant easements
and improvements located thereon) including but not limited to those described
on Schedule 1.3(f) (the "Exchange Party Real Property").
The Exchange Party Station Assets shall be transferred to Clear Channel
free and clear of all Liens except for (i) Clear Channel Assumed Obligations
(defined below), (ii) liens for taxes not yet due and payable and for which
Clear Channel receives a credit pursuant to Section 3.3, (iii) such liens (not
related to Exchange Party indebtedness), easements, rights of way, building and
use restrictions, exceptions, reservations and limitations common for properties
of such nature that do not, and are unlikely to, 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 Exchange
5
6
Party Stations, and (iv) any items listed on Schedule 1.3(b) (collectively,
"Exchange Party Permitted Liens").
1.4. Exchange Party Excluded Assets Notwithstanding anything to the
contrary contained herein, the Exchange Party Station Assets shall not include
the following assets along with all rights, title and interest therein (the
"Exchange Party Excluded Assets"):
(4)1 all cash and cash equivalents of Exchange Party, including
without limitation certificates of deposit, commercial paper, treasury bills,
marketable securities, asset or money market accounts and all such similar
accounts or investments;
(4)2 all accounts receivable or notes receivable arising in the
operation of the Exchange Party Stations prior to Closing;
(4)3 all tangible and intangible personal property of Exchange
Party disposed of or consumed in the ordinary course of business of Exchange
Party between the date of this Agreement and Closing;
(4)4 all Exchange Party Station Contracts that terminate or
expire prior to Closing in the ordinary course of business of Exchange Party;
(4)5 Exchange Party'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 Exchange
Party, duplicate copies of the records of the Exchange Party Stations, and all
records not relating exclusively to the operation of the Exchange Party
Stations;
(4)6 contracts of insurance, and all insurance proceeds or claims
made thereunder;
(4)7 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 Exchange
Party; and
(4)8 any rights, properties or assets described on Schedule
1.4(h), and all rights, properties and assets not specifically described in
Section 1.3.
1.5. Shared Assets. The parties acknowledge and agree that a portion of
the Clear Channel Assets with respect to the stations licensed to Albany, New
York and Grand Rapids, Michigan are shared with the Retained Albany Station and
Retained Michigan, respectively ("Shared Assets"). Clear Channel and Exchange
Party shall review the equipment list for all of these stations and agree in
good faith to make an equitable division of the Shared Assets in each asset
category between the parties. Provided however, that this division shall be made
such that the value of the Shared Assets that each party receives shall be
equal.
6
7
ARTICLE 2: ASSUMPTION OF OBLIGATIONS
2.1. Clear Channel Assumed Obligations. On the Closing Date, Clear
Channel shall assume the obligations of Exchange Party (the "Clear Channel
Assumed Obligations") arising after Closing under the Exchange Party Station
Contracts which have been referenced in writing to or delivered to Clear Channel
or were entered into in the ordinary course of business and which (i) do not
have a term of more than one (1) year, (ii) represent an obligation to the
Exchange Party of not more than fifty thousand dollars ($50,000.00), and (iii)
can be terminated by Exchange Party with no more than ninety (90) days notice,
including without limitation all agreements for the sale of advertising time on
the Exchange Party Stations for cash in the ordinary course of business
("Exchange Party Time Sales Agreements") and all agreements for the sale of
advertising time on the Exchange Party Stations for non-cash consideration
("Exchange Party Trade Agreements").
2.2. Exchange Party Retained Obligations. Clear Channel 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 Exchange Party of any nature whatsoever whether accrued,
absolute, contingent or otherwise and whether or not disclosed to Clear Channel,
other than the Clear Channel Assumed Obligations (the "Exchange Party Retained
Obligations").
2.3. Exchange Party Assumed Obligations. On the Closing Date, Exchange
Party shall assume the obligations of Clear Channel (the "Exchange Party Assumed
Obligations") arising after Closing under the Clear Channel Station Contracts,
including without limitation all agreements for the sale of advertising time on
the Clear Channel Stations for cash in the ordinary course of business ("Clear
Channel Time Sales Agreements") and all agreements for the sale of advertising
time on the Clear Channel Stations for non-cash consideration ("Clear Channel
Trade Agreements").
2.4. Clear Channel Retained Obligations. Exchange Party 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 Clear Channel of any nature whatsoever whether accrued,
absolute, contingent or
7
8
otherwise and whether or not disclosed to Exchange Party, other than the
Exchange Party Assumed Obligations (the "Clear Channel Retained Obligations").
ARTICLE 3: CASH PAYMENT
3.1. Cash Payment. Exchange Party shall at Closing (defined below)
deliver to Clear Channel by wire transfer of immediately available funds
$67,000,000, subject to adjustment pursuant to Sections 3.3 (the "Cash
Payment").
3.2. Deposit. On the date of this Agreement, Exchange Party shall
deposit $5,000,000 (the "Deposit") with NationsBank/Bank of America (the "Escrow
Agent") pursuant to the Escrow Agreement (the "Escrow Agreement") of even date
herewith among Clear Channel, Exchange Party and the Escrow Agent. At Closing,
the Deposit shall be applied to the Cash Payment and any interest accrued on the
Deposit thereon shall be disbursed to Exchange Party. If this Agreement is
terminated by Clear Channel pursuant to Section 16.1(b) and Clear Channel is
entitled to liquidated damages pursuant to Section 16.3, the Exchange Deposit
and any interest accrued thereon shall be disbursed to Clear Channel 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 Exchange Party.
3.3. Prorations and Adjustments. Except 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 Clear Channel Stations and
Exchange Party Stations shall be prorated 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 transfer taxes 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 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 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 Clear Channel and one-half
by Exchange Party.
3.4. Allocation.
(4)1 Subject to Section 3.1, the values of the assets comprising
the Clear Channel Station Assets and the Exchange Party Station Assets shall be
determined by an appraisal
8
9
(the "Appraisal") prepared by Bond & Xxxxxx (whose fees shall be paid one-half
by Clear Channel and one-half by Exchange Party). Prior to Closing, Clear
Channel shall prepare and provide to Exchange Party schedules which, for each
party to this Agreement, show the respective Clear Channel Station Assets and
Exchange Party Station Assets to be conveyed and acquired and Cash Payment to be
made and received at Closing under this Agreement.
(4)2 Before or after Closing, Clear Channel shall prepare
schedules (the "Exchange Group Schedules") which (i) divide the Exchange Party
Station Assets and the Clear Channel Station Assets into both "exchange groups"
(in accordance with the like-kind exchange rules covering exchanges of multiple
properties under Treas. Reg. Section 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
4.1. Closing. The consummation of the exchange of assets under this
Agreement (the "Closing") shall occur on a date (the "Closing Date") and at a
time and place designated solely by Clear Channel after FCC Consent (defined
below)(which date may be before, but shall be not later than, five business days
after the Closing under the AMFM Agreement), subject to satisfaction or waiver
of the conditions to Closing contained herein (other than those to be satisfied
at Closing). Clear Channel shall provide Exchange Party with notice of the
Closing Date at least three (3) business days prior to the Closing, however,
Clear Channel reserves the right to extend the Closing Date without penalty,
provided, however, the Closing Date shall not be extended beyond a date which is
ninety (90) days after the satisfaction or waiver of all of the conditions to
Closing contained herein, including without limitation that the closing under
the AMFM Agreement shall have been consummated (other than those to be satisfied
at Closing). If requested by Clear Channel, prior to Closing the parties shall
hold a pre-closing conference at a time and place designated by Clear Channel,
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. If Closing
occurs prior to the FCC Consent becoming a final order (i.e., no longer subject
to appeal), and prior to such finality the FCC Consent is reversed or otherwise
set aside pursuant to a final order of the FCC (or court of competent
jurisdiction), then the parties shall comply with such order in a manner that
otherwise complies with applicable law and returns the parties to the status quo
ante in all material respects (it being understood that in such event Exchange
Party may designate one or more third parties as the transferees of the Clear
Channel Stations).
9
10
ARTICLE 5: GOVERNMENTAL CONSENTS
Closing is subject to and conditioned upon (i) prior FCC consent (the
"FCC Consent") to the assignment of the Clear Channel FCC Licenses to Exchange
Party and the Exchange Party FCC Licenses to Clear Channel, (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 Clear Channel 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 Clear Channel, Clear Channel and
Exchange Party shall file applications with the FCC (the "FCC Application")
requesting the FCC Consent. Clear Channel and Exchange Party 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 Exchange Party
any condition (including without limitation in any divestiture condition),
Exchange Party shall timely comply therewith. If the FCC Consent imposes upon
Clear Channel any condition that Clear Channel can satisfy by the payment of
$100,000.00 or less, Clear Channel shall comply therewith, but only if such
condition can be satisfied by the payment by Clear Channel of $100,000 or less.
5.2. HSR. If not previously filed, then within five (5) business days
after the execution of this Agreement, Clear Channel and Exchange Party 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.
5.3. General. Clear Channel and Exchange Party 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. Clear Channel
and Exchange Party shall furnish each other with such information and assistance
as the other may reasonably request in connection with their preparation of any
governmental filing hereunder. If Exchange Party becomes aware of any fact
relating to it which would prevent or delay the FCC Consent, the DOJ Consent or
HSR Clearance, Exchange Party shall promptly notify Clear Channel 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 CLEAR CHANNEL
Clear Channel makes the following representations and warranties to
Exchange Party:
6.1. Organization. Clear Channel 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
10
11
each jurisdiction in which the Clear Channel Station Assets and the Exchange
Party Station Assets are located. Clear Channel 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 Clear Channel pursuant hereto
(collectively, the "Clear Channel 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 Clear Channel Ancillary Agreements by Clear Channel have been
duly authorized and approved by all necessary action of Clear Channel and do not
require any further authorization or consent of Clear Channel. This Agreement
is, and each Clear Channel Ancillary Agreement when executed and delivered by
Clear Channel and the other parties thereto will be, a legal, valid and binding
agreement of Clear Channel 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 Clear Channel
of this Agreement and the Clear Channel Ancillary Agreements or the consummation
by Clear Channel of any of the transactions contemplated hereby or thereby nor
compliance by Clear Channel with or fulfillment by Clear Channel of the terms,
conditions and provisions hereof or thereof will: (i) conflict with any
organizational documents of Clear Channel or any law, judgment, order, or decree
to which Clear Channel is subject or, except as set forth on Schedule 1.1(c),
any Clear Channel Station Contract; or (ii) require the approval, consent,
authorization or act of, or the making by Clear Channel 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. FCC Licenses. Clear Channel (or one of the companies comprising
Clear Channel) is the holder of the Clear Channel FCC Licenses described on
Schedule 1.1(a) which lists all of the material Clear Channel FCC Licenses for
the Clear Channel Stations. The Clear Channel FCC Licenses are in full force and
effect and have not been revoked, suspended, canceled, rescinded or terminated
and have not expired. Except as described on Schedule 1.1(a), to the actual
knowledge of the station general managers of any of the Clear Channel Stations,
(i) each Clear Channel Station is operating with maximum power and facilities
specified in the respective Clear Channel License, (ii) none of the Clear
Channel Stations is causing objectionable interference to the transmissions of
any other broadcast station or communications facility and (iii) no other
broadcast station or communications facility is causing objectionable
interference to the transmissions of any Clear Channel Station. There is not
pending any action by or before the
11
12
FCC to revoke, suspend, cancel, rescind or materially adversely modify any of
the Clear Channel 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 Clear Channel with respect to the
Clear Channel Stations. The Clear Channel Stations are operating in compliance
in all material respects with the Clear Channel FCC Licenses, the Communications
Act of 1934, as amended (the "Communications Act"), and the rules, regulations
and policies of the FCC.
6.5. Taxes. Clear Channel has, in respect of the Clear Channel
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.
6.6. Personal Property. Schedule 1.1(b) contains a list of all material
items of Clear Channel Tangible Personal Property included in the Clear Channel
Station Assets. Clear Channel has title to the Clear Channel Tangible Personal
Property free and clear of Liens other than Clear Channel Permitted Liens. The
items of Clear Channel Tangible Personal Property listed on Schedule 1.1(b) are
in all material respects in good working condition, ordinary wear and tear
excepted.
6.7. Real Property. Schedule 1.1(f) contains a description of all
material real property used by Clear Channel in the operation of the Clear
Channel Stations. Clear Channel has fee simple title to the owned Clear Channel
Real Property ("Clear Channel Owned Real Property") free and clear of Liens
other than Clear Channel Permitted Liens. Schedule 1.1(f) includes a description
of each material real property lease or similar agreement included in the Clear
Channel Station Assets (the "Clear Channel Real Property Leases"). The Clear
Channel Owned Real Property includes, and the Clear Channel Real Property Leases
provide, access to the Clear Channel Stations' facilities. To Clear Channel's
knowledge, the Clear Channel Real Property is not subject to any suit for
condemnation or other taking by any public authority. Except as described on
Schedule 1.1(f), to the actual knowledge of the station general managers of any
of the Clear Channel Stations, none of the buildings, structures, improvements
or fixtures constructed on any of the Clear Channel Owned Real Property encroach
upon adjoining real property ("Clear Channel Encroachment Representation").
6.8. Contracts. Schedule 1.1(c) contains a description of all material
Clear Channel Station Contracts. Each of the Clear Channel Station Contracts
(including without limitation each of the Clear Channel Real Property Leases) is
in effect and is binding upon Clear Channel and, to Clear Channel'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). Clear Channel has performed its obligations under each of the Clear
Channel Station Contracts in all material respects, and is not in material
default thereunder, and to Clear Channel's knowledge, no other party to any of
the Clear Channel Station Contracts is in default thereunder in any material
respect.
12
13
6.9. Environmental. Except as set forth in any environmental report
delivered by Clear Channel to Exchange Party prior to the date of this Agreement
and except as set forth on Schedule 1.1(f), to Clear Channel'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, from or to the Clear Channel Real Property included in the
Clear Channel Station Assets. Except as set forth in any environmental report
delivered by Clear Channel to Exchange Party prior to the date of this Agreement
and except as set forth on Schedule 1.1(f), to Clear Channel's knowledge, Clear
Channel has complied in all material respects with all environmental, health and
safety laws applicable to the Clear Channel Stations.
6.10. Intangible Property. Schedule 1.1(d) contains a description of
the material Clear Channel Intangible Property included in the Clear Channel
Station Assets. Except as set forth on Schedule 1.1(d), Clear Channel has
received no notice of any claim that its use of the Clear Channel Intangible
Property infringes upon any third party rights. . Except as set forth on
Schedule 1.1(d), Clear Channel owns or has the right to use the Clear Channel
Intangible Property free and clear of Liens other than Clear Channel Permitted
Liens.
6.11. Compliance with Law. Clear Channel 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 Clear Channel Stations. There is no action, suit or proceeding pending or
threatened against Clear Channel in respect of the Clear Channel Stations that
will subject Exchange Party to liability or which questions the legality or
propriety of the transactions contemplated by this Agreement. To Clear Channel's
knowledge, there are no governmental claims or investigations pending or
threatened against Clear Channel in respect of the Clear Channel Stations
(except those affecting the industry generally).
6.12. 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 Clear Channel or any party acting on Clear Channel's behalf.
6.13. Qualification. Clear Channel is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the Exchange
Party Stations under 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
Clear Channel as an assignee of the Exchange Party FCC Licenses or as the owner
and operator of the Exchange Party Stations. No request by Clear Channel for
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
13
14
threatened against Clear Channel which could materially adversely affect Clear
Channel's ability to perform its obligations hereunder.
6.14. Financial Statements. Clear Channel has delivered to Exchange
Party copies of the unaudited results of operations of the Clear Channel
Stations for the twelve months ended December 31, 1999. Such financial
statements (and the monthly income statements to be supplied pursuant to Section
9.1(c)) were or will be prepared in accordance with the books and records of the
Clear Channel Stations and present (or will present) fairly the results of
operations for the period indicated.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES OF EXCHANGE PARTY
Exchange Party makes the following representations and warranties to
Clear Channel:
7.1. Organization. Exchange Party 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 Exchange Party
Station Assets and the Clear Channel Station Assets are located. Exchange Party
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
Exchange Party pursuant hereto (collectively, the "Exchange Party 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 Exchange Party Ancillary Agreements by Exchange Party have
been duly authorized and approved by all necessary action of Exchange Party and
do not require any further authorization or consent of Exchange Party. This
Agreement is, and each Exchange Party Ancillary Agreement when executed and
delivered by Exchange Party and the other parties thereto will be, a legal,
valid and binding agreement of Exchange Party 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 Exchange Party
of this Agreement and the Exchange Party Ancillary Agreements or the
consummation by Exchange Party of any of the transactions contemplated hereby or
thereby nor compliance by Exchange Party with or fulfillment by Exchange Party
of the terms, conditions and provisions hereof or thereof will: (i) conflict
with any organizational documents of Exchange Party or any law, judgment, order,
or decree to which Exchange Party is subject or, except as set forth on Schedule
1.3(c), any Exchange Party Station Contract; or (ii) require the approval,
consent, authorization or act of, or the making by Exchange Party 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.
14
15
7.4.
7.5. FCC Licenses. Exchange Party is the holder of the Exchange Party
FCC Licenses described on Schedule 1.3(a) which lists all of the material
Exchange Party FCC Licenses for the Exchange Party Stations. The Exchange Party
FCC Licenses are in full force and effect and have not been revoked, suspended,
canceled, rescinded or terminated and have not expired. Except as described on
Schedule 1.3(a), to the actual knowledge of the station general managers of any
of the Exchange Party Stations, (i) each Exchange Party Station is operating
with maximum power and facilities specified in the respective Exchange Party
License, (ii) none of the Exchange Party Stations is causing objectionable
interference to the transmissions of any other broadcast station or
communications facility and (iii) no other broadcast station or communications
facility is causing objectionable interference to the transmissions of any
Exchange Party Station. There is not pending any action by or before the FCC to
revoke, suspend, cancel, rescind or materially adversely modify any of the
Exchange Party 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 Exchange Party with respect to the
Exchange Party Stations. The Exchange Party Stations are operating in compliance
in all material respects with the Exchange Party FCC Licenses, the
Communications Act, and the rules, regulations and policies of the FCC.
7.6. Taxes. Exchange Party has, in respect of the Exchange Party
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.
7.7. Personal Property. Schedule 1.3(b) contains a list of all material
items of Exchange Party Tangible Personal Property included in the Exchange
Party Station Assets. Exchange Party has title to the Exchange Party Tangible
Personal Property free and clear of Liens other than Exchange Party Permitted
Liens. The items of Exchange Party Tangible Personal Property listed on Schedule
1.3(b) are in all material respects in good working condition, ordinary wear and
tear excepted.
7.8. Real Property. Schedule 1.3(f) contains a description of all
material real property used by Exchange Party in the operation of the Exchange
Party Stations. Exchange Party has fee simple title to the owned Exchange Party
Real Property ("Exchange Party Owned Real Property") free and clear of Liens
other than Exchange Party Permitted Liens. Schedule 1.3(f) includes a
description of each material real property lease or similar agreement included
in the Exchange Party Station Assets (the "Exchange Party Real Property
Leases"). The Exchange Party Owned Real Property includes, and the Exchange
Party Real Property Leases provide, access to the
15
16
Exchange Party Stations' facilities. To Exchange Party's knowledge, the Exchange
Party Real Property is not subject to any suit for condemnation or other taking
by any public authority. Except as described in Schedule 1.3(f), to the actual
knowledge of the station general managers of any of the Exchange Party Stations,
none of the buildings, structures, improvements or fixtures constructed on any
of the Clear Channel Owned Real Property encroach upon adjoining real property
("Exchange Party Encroachment Representation").
7.9. Contracts. Schedule 1.3(c) contains a description of all material
Exchange Party Station Contracts. Each of the Exchange Party Station Contracts
(including without limitation each of the Exchange Party Real Property Leases)
is in effect and is binding upon Exchange Party and, to Exchange Party'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). Exchange Party has performed its obligations under
each of the Exchange Party Station Contracts in all material respects, and is
not in material default thereunder, and to Exchange Party's knowledge, no other
party to any of the Exchange Party Station Contracts is in default thereunder in
any material respect.
7.10. Environmental. Except as set forth in any environmental report
delivered by Exchange Party to Clear Channel prior to the date of this Agreement
and except as set forth on Schedule 1.3(f), to Exchange Party'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, from or to the Exchange Party Real Property included in the
Exchange Party Station Assets. Except as set forth in any environmental report
delivered by Exchange Party to Clear Channel prior to the date of this Agreement
and except as set forth on Schedule 1.3(f), to Exchange Party's knowledge,
Exchange Party has complied in all material respects with all environmental,
health and safety laws applicable to the Exchange Party Stations.
7.11. Intangible Property. Schedule 1.3(d) contains a description of
the material Exchange Party Intangible Property included in the Exchange Party
Station Assets. Except as set forth on Schedule 1.3(d), Exchange Party has
received no notice of any claim that its use of the Exchange Party Intangible
Property infringes upon any third party rights. Except as set forth on Schedule
1.3(d), Exchange Party owns or has the right to use the Exchange Party
Intangible Property free and clear of Liens other than Exchange Party Permitted
Liens.
7.12. Compliance with Law. Exchange Party 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 Exchange Party Stations. There is no action, suit or proceeding pending
or threatened against Exchange Party in respect of the Exchange Party Stations
that will subject Clear Channel to liability or which questions the legality or
propriety of the transactions contemplated by this Agreement. To Exchange
Party's knowledge, there are no governmental claims or investigations pending or
threatened against Exchange Party in respect of the Exchange Party Stations
(except those affecting the industry generally).
16
17
7.13. 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 Exchange Party or any party acting on Exchange Party's behalf.
7.14. Qualification. Exchange Party is legally, financially and
otherwise qualified to be the licensee of, acquire, own and operate the Clear
Channel Stations under 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
Exchange Party as an assignee of the Clear Channel FCC Licenses or as the owner
and operator of the Clear Channel Stations. No request by Exchange Party for
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
Exchange Party which could materially adversely affect Exchange Party's ability
to perform its obligations hereunder. Exchange Party has and will have available
on the Closing Date sufficient funds to enable it to consummate the transactions
contemplated hereby.
7.15. Financial Statements. Exchange Party has delivered to Clear
Channel copies of the unaudited results of operations of the Exchange Party
Stations for the twelve months ended December 31, 1999. Such financial
statements (and the monthly income statements to be supplied pursuant to Section
9.2(c)) prepared in accordance with the books and records of the Exchange Party
Stations and present (or will present) fairly the results of operations for the
period indicated.
ARTICLE 8: ACCOUNTS RECEIVABLE
8.1. Clear Channel Accounts Receivable. All accounts receivable arising
prior to the Closing Date in connection with the operation of the Clear Channel
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 Clear Channel (the "Clear Channel Accounts Receivable")
and Exchange Party shall not acquire any right or interest therein. For a period
of six months from Closing (the "Collection Period"), Exchange Party shall
collect the Clear Channel Accounts Receivable in the normal and ordinary course
of Exchange Party's business and shall apply all such amounts collected to the
debtor's oldest account receivable first. Exchange Party'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 Clear Channel 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
17
18
to the Clear Channel Accounts Receivable that are paid directly to Clear Channel
shall be retained by Clear Channel (and it shall inform Exchange Party thereof).
Within ten calendar days after the end of each month, Exchange Party shall make
a payment to Clear Channel equal to the amount of all collections of Clear
Channel Accounts Receivable during the preceding month. At the end of the
Collection Period, any remaining Clear Channel Accounts Receivable shall be
returned to Clear Channel for collection.
8.2. Exchange Party Accounts Receivable. All accounts receivable
arising prior to the Closing Date in connection with the operation of the
Exchange Party 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 Exchange Party (the "Exchange Party
Accounts Receivable") and Clear Channel shall not acquire any right or interest
therein. During the Collection Period, Clear Channel shall collect the Exchange
Party Accounts Receivable in the normal and ordinary course of Clear Channel's
business and shall apply all such amounts collected to the debtor's oldest
account receivable first. Clear Channel'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
Exchange Party 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 Exchange Party Accounts
Receivable that are paid directly to Exchange Party shall be retained by
Exchange Party (and it shall inform Clear Channel thereof). Within ten calendar
days after the end of each month, Clear Channel shall make a payment to Exchange
Party equal to the amount of all collections of Exchange Party Accounts
Receivable during the preceding month. At the end of the Collection Period, any
remaining Exchange Party Accounts Receivable shall be returned to Exchange Party
for collection.
ARTICLE 9: COVENANTS
9.1. Clear Channel's Covenants. Clear Channel covenants and agrees with
respect to the Clear Channel Stations that, between the date hereof and Closing,
except as permitted by this Agreement or with the prior written consent of
Exchange Party, which shall not be unreasonably withheld, Clear Channel shall:
(1)1 operate the Clear Channel Stations in the ordinary course of
business consistent with past practice, including retaining the current format
and programming (including the content thereof) and spending for promotions,
advertising and research at levels shown on budgets delivered to Exchange Party
and in all material respects in accordance with FCC rules and regulations and
with all other applicable laws, regulations, rules and orders;
(1)2 not, other than in the ordinary course of business in
accordance with past practice, (i) sell, lease or dispose of or agree to sell,
lease or dispose of any of the Clear Channel Station Assets, (ii) create, assume
or permit to exist any Liens upon the Clear Channel Station Assets, except for
Clear Channel Permitted Liens, (iii) amend or terminate any Clear Channel
18
19
Station Contract or enter into any new contracts (except for Clear Channel Time
Sales Agreements) which (x) have a term of more than one (1) year, (y) represent
an obligation to Clear Channel of more than fifty thousand dollars ($50,000.00),
and (z) can't be terminated by Clear Channel with no more than ninety (90) days
notice, or (iv) except as provided for by the Clear Channel budgets delivered to
Exchange Party, grant any increases in the compensation of its employees;
(1)3 furnish Exchange Party with such information relating to the
Clear Channel Station Assets as Exchange Party may reasonably request (including
weekly sales projections and monthly income statements), at Exchange Party's
expense and provided such request does not interfere unreasonably with the
business of the Clear Channel Stations, and provide Exchange Party access to the
Clear Channel Stations, Station Assets and personnel upon reasonable request and
notice to Clear Channel.
9.2. Exchange Party's Covenants. Exchange Party covenants and agrees
with respect to the Exchange Party Stations that, between the date hereof and
Closing, except as permitted by this Agreement or with the prior written consent
of Clear Channel, which shall not be unreasonably withheld, Exchange Party
shall:
(2)1 operate the Exchange Party Stations in the ordinary course
of business consistent with past practice, including retaining the current
format and programming (including the content thereof) and spending for
promotions, advertising and research at levels shown on budgets delivered to
Clear Channel and in all material respects in accordance with FCC rules and
regulations and with all other applicable laws, regulations, rules and orders;
(2)2 not, other than in the ordinary course of business in
accordance with past practice, (i) sell, lease or dispose of or agree to sell,
lease or dispose of any of the Exchange Party Station Assets, (ii) create,
assume or permit to exist any Liens upon the Exchange Party Station Assets,
except for Exchange Party Permitted Liens, (iii) amend or terminate any Exchange
Party Station Contract or enter into any new contracts (except for Exchange
Party Time Sales Agreements) which (x) have a term of more than one (1) year,
(y) represent an obligation to Exchange Party of more than fifty thousand
dollars ($50,000.00), and (z) can't be terminated by Exchange Party with no more
than ninety (90) days notice, or (iv) except as provided for by the Exchange
Party budgets delivered to Clear Chanel, grant any increases in the compensation
of its employees;
(2)3 furnish Clear Channel with such information relating to the
Exchange Party Station Assets as Clear Channel may reasonably request including
weekly sales projections and monthly income statements, at Clear Channel's
expense and provided such request does not interfere unreasonably with the
business of the Exchange Party Stations, and provide Clear
19
20
Channel access to the Exchange Party Stations, Station Assets and personnel upon
reasonable request and notice to Exchange Party.
ARTICLE 10: JOINT COVENANTS
Clear Channel and Exchange Party 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. Neither 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.
10.3. Consents to Assignment. The parties shall use commercially
reasonable efforts to obtain any third party consents necessary for the
assignment of any Clear Channel Station Contract or Exchange Party Station
Contract (which shall not require any payment to any such third party). To the
extent that any such 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 and assumption of rights and obligations thereunder, with the
conveying party making available to the acquiring party the benefits thereof and
the acquiring party performing the obligations thereunder on the conveying
party's behalf; provided, however, the conveying party shall indemnify (pursuant
to Article 15 of this Agreement) the acquiring party for Damages (as hereafter
defined) as a result of the conveying party's failure to have obtained a consent
to assignment with respect to any of the leases for the main transmitter sites
and studio sites listed on Schedule 1.1(f) and included in Section 1.3(f)
including but not limited to those listed on Schedule 1.3(f) respectively.
10.4. Employee Matters. Clear Channel has provided, and Exchange Party
shall provide within three (3) days of the execution of this Agreement to the
other party a list (with name, position and base salary) of all of their
respective employees employed at the Clear Channel Stations and the Exchange
Party Stations and who work primarily for those stations. Exchange Party may
interview and elect to hire any or all of the Clear Channel employees on the
list (i) employed at the Clear Channel Stations licensed to Grand Rapids,
Michigan and (ii) employed at the Clear Channel Stations licensed to Albany, New
York who work primarily for those Clear Channel Stations (including without
limitation any member of the sales staff who primarily sells
20
21
for or represents radio station WQBJ-FM or WQBK-FM). Clear Channel may interview
and elect to hire any or all of the Exchange Party employees on the list. The
acquiring party is obligated to hire only those employees that are under
employment contracts (and assume the obligations and liabilities under such
employment contracts) which are included in the Clear Channel Station Contracts
or Exchange Party Station Contracts. With respect to employees hired by the
acquiring party ("Transferred Employees"), to the extent permitted by law the
conveying party shall provide access to its personnel records and such other
information as may be reasonably requested prior to Closing. For a period of
twelve (12) months after Closing, neither party will hire, solicit or induce for
hire or make any offer or attempt to hire, any of the Transferred Employees
hired by the other party. Provided, however, either party may six (6) months
after Closing (but not before) hire or solicit for hire any of its former
employees who are not Transferred Employees. With respect to such hired
employees, the conveying party shall be responsible for the payment of all
compensation and accrued employee benefits payable by it until Closing and
thereafter the acquiring party shall be responsible for all such obligations
payable by it. The acquiring party shall cause all employees it hires to be
eligible to participate in its "employee welfare benefit plans" and "employee
pension benefit plans" (as defined in Section 3(1) and 3(2) of ERISA,
respectively) in which similarly situated employees are generally eligible to
participate; provided, however, that all such employees and their spouses and
dependents shall be eligible for coverage immediately after Closing (and shall
not be excluded from coverage 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 such employees may be eligible after Closing, the acquiring party
shall ensure that service with the conveying party shall be deemed to have been
service with the acquiring party. No such service credit must be granted with
respect to participation or eligibility in any employee pension benefit plan. In
addition, the acquiring party shall ensure that each such employee receives
credit under any welfare benefit plan of the acquiring party for any deductibles
or co-payments paid by such employees and dependents for the current plan year
under a plan maintained by the conveying party. Notwithstanding any other
provision contained herein, the acquiring party shall grant credit to each such
employee for all unused sick leave accrued as of Closing as an employee of the
conveying party. Notwithstanding any other provision contained herein, the
acquiring party shall assume and discharge the conveying party's liabilities for
the payment of all unused vacation leave accrued by such employees as of
Closing. From and after the Closing, Exchange Party shall cooperate with the
reasonable requests of Clear Channel to continue to withhold from the pay checks
of Transferred Employees who have outstanding loan balances in Clear Channel's
401(k) Savings Plan, and Exchange Party shall remit such withheld amounts to
Clear Channel in a timely fashion such that the outstanding loans do not go into
default.
10.5. 1031 Exchange. At or prior to Closing, Clear Channel may assign
its rights under this Agreement (in whole or in part) to a qualified
intermediary (as defined in Treasury regulation
21
22
section 1.1031(k)-1(g)(4)) or similar entity or arrangement ("Qualified
Intermediary"). Upon any such assignment, Clear Channel shall promptly give
written notice thereof to Exchange Party and Exchange Party shall cooperate with
the reasonable requests of Clear Channel and any Qualified Intermediary in
connection therewith. Without limiting the generality of the foregoing, if Clear
Channel gives notice of such agreement, Exchange Party shall (i) promptly
provide Clear Channel with written acknowledgment of such notice and (ii) at
Closing, convey all or part of the Exchange Party Station Assets and make all or
part of the Cash Payment (each as designated in writing by the Qualified
Intermediary) to or on behalf of the Qualified Intermediary (which payment and
conveyance shall, to the extent thereof, satisfy the obligation of Exchange
Party to make such conveyance and payment hereunder). Clear Channel's assignment
to a Qualified Intermediary will not relieve Clear Channel of any of its duties
or obligations herein. Except for the obligations of Exchange Party set forth in
this Section, Exchange Party shall not have any liability or obligation to Clear
Channel 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 Exchange Party under this Agreement.
10.6. Trust. Notwithstanding anything in this Agreement to the
contrary, Clear Channel may at it option assign this Agreement (in whole or
part) and assign and transfer the Clear Channel Station Assets (in whole or in
part) to a trustee to hold and operate pursuant to a trust agreement, provided
such trustee assumes Clear Channel's duties and obligations hereunder with
respect to the Clear Channel Station Assets held in such trust.
ARTICLE 11: CONDITIONS OF CLOSING BY CLEAR CHANNEL
The obligations of Clear Channel 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 Exchange Party 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 Exchange Party at or prior to
Closing shall have been complied with or performed in all material respects.
Clear Channel shall have received a certificate dated as of the Closing Date
from Exchange Party, executed by an authorized officer of Exchange Party 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.
11.3. AMFM Closing. The closing under the AMFM Agreement shall have
been consummated.
22
23
ARTICLE 12: CONDITIONS OF CLOSING BY EXCHANGE PARTY
The obligations of Exchange Party hereunder are, at its option, subject
to satisfaction, at or prior to Closing, of each of the following conditions:
12.1. Representations, Warranties and Covenants. The representations
and warranties of Clear Channel 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 Clear Channel at or prior to Closing shall
have been complied with or performed in all material respects. Exchange Party
shall have received a certificate dated as of the Closing Date from Clear
Channel, executed by an authorized officer of Clear Channel, 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.
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 Clear Channel
Station Assets and Exchange Party Station Assets shall be paid by the
transferring party, (ii) all FCC filing fees shall be paid equally by Clear
Channel and Exchange Party, and (iii) all HSR Act filing fees and expenses shall
be paid equally by Exchange Party and Clear Channel.
ARTICLE 14: DOCUMENTS TO BE DELIVERED AT CLOSING
14.1. Clear Channel's Documents. At Closing, Clear Channel shall
deliver or cause to be delivered to Exchange Party:
14.2.
(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 12.1;
(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 Clear Channel Station
Assets to Exchange Party, free and clear of Liens, except for Clear Channel
Permitted Liens; and
23
24
(iv) such documents and instruments of assumption as may be
necessary to assume the Exchange Party Assumed Obligations.
14.3. Exchange Party's Documents. At Closing, Exchange Party shall
deliver or cause to be delivered to Clear Channel:
(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 certificate described in Section 11.1;
(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 Exchange Party Station
Assets to Clear Channel, free and clear of Liens, except for Exchange Party
Permitted Liens;
(iv) such documents and instruments of assumption as may be
necessary to assume the Clear Channel Assumed Obligations; and
(v) the Cash Payment 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) Sections 2.1 and 2.3 (Assumed Obligations), 2.2 and 2.4
(Retained Obligations), 3.3 (Adjustments), 3.4 (Allocation), 8.1 and 8.2
(Accounts Receivable) and 13.1 (Expenses) (collectively, the "Payment
Provisions"), and indemnification obligations with respect to such provisions,
which shall survive until performed.
15.2. Indemnification.
(2)1 From and after the Closing, Clear Channel shall defend,
indemnify and hold harmless Exchange Party from and against any and all losses,
costs, damages, liabilities and expenses, including reasonable attorneys' fees
and expenses ("Damages") incurred by Exchange Party arising out of or resulting
from: (i) any breach or default by Clear Channel under this Agreement; (ii) the
Clear Channel Retained Obligations or the business or operation of the Clear
Channel Stations before Closing; or (iii) the Clear Channel Assumed Obligations
or the business or operation of the Exchange Party Stations after Closing;
provided, however, that for matters other than the Payment Provisions, Clear
Channel shall have no liability to Exchange Party hereunder until, and only to
the extent that, Exchange Party's aggregate Damages exceed $100,000, (except for
Damages (x) for any Liens not in compliance with subsection (iii) of the last
paragraph of 1.1 ("Clear Channel Lien Default") or (y) for breach of the Clear
Channel Encroachment Representation ("Clear Channel Encroachment Default") for
which Clear Channel
24
25
shall have liability for all such Damages under $500,000 and in excess of
$600,000) and the maximum liability of Clear Channel in all cases of
indemnification hereunder shall be $7,000,000.
(2)2 From and after the Closing, Exchange Party shall defend,
indemnify and hold harmless Clear Channel from and against any and all Damages
incurred by Clear Channel arising out of or resulting from: (i) any breach or
default by Exchange Party under this Agreement; (ii) the Exchange Party Retained
Obligations or the business or operation of the Exchange Party Stations before
Closing or (iii) the Exchange Party Assumed Obligations or the business or
operation of the Clear Channel Stations after Closing; provided, however, that
for matters other than the Payment Provisions and the Cash Payment, Exchange
Party shall have no liability to Clear Channel hereunder until, and only to the
extent that, Clear Channel's aggregate Damages exceed $100,000 (except for
Damages (x) for any Liens not in compliance with subsection (iii) of the last
paragraph of 1.3 ("Exchange Party Lien Default") or (y) for breach of the
Exchange Party Encroachment Representation ("Exchange Party Encroachment
Default") for which the Exchange Party shall have liability for all such Damages
under $500,000 and in excess of $600,000) and (ii) the maximum liability of
Exchange Party in all cases of indemnification hereunder shall be $7,000,000.
Provided, however, the parties agree that before making a claim for
Damages for Clear Channel Lien Default, Clear Channel Encroachment Default,
Exchange Party Lien Default or Exchange Party Encroachment Default,
respectively, they both shall use their reasonable best efforts to allow the
breaching party to avoid or cure any such default and Damages through the use of
lease, contract or any other reasonable arrangements.
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:
(3)1 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.
(3)2 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
25
26
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).
(3)3 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.
(3)4 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.
ARTICLE 16: TERMINATION
16.1. Termination. This Agreement may be terminated at any time prior
to Closing as follows:
26
27
(1)1 by mutual written consent of Clear Channel and Exchange
Party;
(1)2 by written notice of Clear Channel to Exchange Party if
Exchange Party (i) does not satisfy the conditions or perform the obligations to
be satisfied or performed by it on the Closing Date, including without
limitation, the consummation of the Closing in accordance with the Agreement; 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)
(1)3 by written notice of Exchange Party to Clear Channel if
Clear Channel (i) does not satisfy the conditions or perform the obligations to
be satisfied or performed by it on the Closing Date, including without
limitation, the consummation of the Closing in accordance with the Agreement; 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)
(1)4 by written notice of either party to the other if the FCC
denies the FCC Application;
(1)5 by written notice of Clear Channel to Exchange Party if the
FCC Consent, DOJ Consent and HSR Clearance have not been obtained before the
date four months after the date of this Agreement;
(1)6 by written notice of Clear Channel to Exchange Party or
Exchange Party to Clear Channel if the Closing shall not have been consummated
by March 31, 2001.
(1)7 by written notice of Clear Channel to Exchange Party if the
AMFM Agreement is terminated or expires.
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.
27
28
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 Clear Channel 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 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 Clear Channel terminates this Agreement
pursuant to Section 16.1(b), then Exchange Party shall pay Clear Channel as
liquidated damages an amount equal to $28,000,000; provided however, Clear
Channel shall not be entitled to liquidated damages in the event Clear Channel
terminates this Agreement because of a failure of a condition to be satisfied if
such failure is not caused by a failure of the Exchange Party to perform the
obligations to be satisfied or performed by it under this Agreement. Provided
further, Clear Channel shall not be entitled to liquidated damages unless all of
the Exchange Party's conditions precedent to its obligation to close as provided
for in Article 12 have been satisfied and Exchange Party fails to consummate the
Closing on the Closing Date and Clear Channel is not in material default or
breach of any of its obligations under the Agreement and has otherwise satisfied
the conditions and has performed the obligations to be satisfied or performed by
it pursuant to the Agreement in all material respects. It is understood and
agreed that such liquidated damages amount represents Clear Channel's and
Exchange Party's reasonable estimate of actual damages and does not constitute a
penalty. On the date of this Agreement, Exchange Party shall execute and deliver
to Clear Channel the liquidated damages agreement attached hereto as Exhibit C.
ARTICLE 17: MISCELLANEOUS PROVISIONS
17.1. Casualty Loss. In the event any loss or damage of the Clear
Channel Station Assets or the Exchange Party Station Assets exists on the
Closing Date, the parties shall consummate the Closing and assign as appropriate
the proceeds of any insurance payable on account of such damage or loss.
17.2. 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
28
29
effectively consummate the transactions contemplated hereby to exchange assets
and assume obligations as contemplated by this Agreement.
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, provided that any party may assign
its right to acquire one or more of the radio stations covered by this Agreement
to one or more 100% owned affiliates of such party if such assignment does not
delay the governmental consents contemplated by Article 5 (or otherwise delay
Closing), the representations made by it under this Agreement are true with
respect to the assignee(s), and the assigning party gives the other party prior
written notice thereof. No such assignment shall relieve the assigning party of
any obligation or liability under this Agreement. 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.
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):
29
30
if to Clear Channel: 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: Xxxxxxx, Head & Xxxxxxx
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
if to Exchange Party: c/o Regent Communications, Inc.
00 Xxxx Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not
constitute notice) to:
Xxxxxxx & Xxxx
The Federal Reserve Building
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
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.
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.
30
31
17.11. Entire Agreement. This Agreement, and any other document
executed by the parties pursuant or in connection with this Agreement of even
date embody the entire agreement and understanding of the parties hereto and
supersede any and all prior agreements, arrangements and understandings relating
to the matters provided for herein. This Agreement does not supersede any
confidentiality agreement relating to the Clear Channel Stations or Exchange
Party Stations.
[SIGNATURE PAGE FOLLOWS]
31
32
SIGNATURE PAGE TO ASSET EXCHANGE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
CLEAR CHANNEL: CLEAR CHANNEL BROADCASTING, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
CLEAR CHANNEL BROADCASTING LICENSES, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
CAPSTAR RADIO OPERATING COMPANY
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
CAPSTAR TX LIMITED PARTNERSHIP
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
32
33
EXCHANGE PARTY: REGENT BROADCASTING OF VICTORVILLE, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
REGENT LICENSEE OF VICTORVILLE, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
REGENT BROADCASTING OF PALMDALE, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
REGENT LICENSEE OF PALMDALE, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
REGENT BROADCASTING OF MANSFIELD, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
REGENT LICENSEE OF MANSFIELD, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
33
34
Clear Channel Schedules
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
Exchange Party Schedules
1.3(a) - FCC Licenses
1.3(b) - Tangible Personal Property
1.3(c) - Station Contracts
1.3(d) - Intangible Property
1.3(f) - Real Property
1.4(h) - Excluded Assets
34
