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EXHIBIT 10.15
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of March 3,
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 station (the
"Station") pursuant to certain authorizations issued by the Federal
Communications Commission (the "FCC"):
WUBE(AM) licensed to Cincinnati, Ohio
B. Subject to the terms and conditions set forth herein, Buyer desires
to acquire the Station Assets (defined below).
C. Clear Channel Communications, Inc., CCU Merger Sub, Inc. and AMFM
Inc. (Seller's parent) 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, owned or leased (to the extent of Seller's leasehold
interest), which are used exclusively in the operation of the Station 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 Station (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
Station 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 Station
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 Station, provided that Seller
shall not enter into any new contracts, agreements, and leases in which any
individual contract has a term in excess of 12 months or involves annual
payments by Seller in excess of $15,000 without the prior consent of Buyer (such
consent not to be unreasonably withheld), provided further, that this
restriction shall not apply to renewals of existing contracts in the ordinary
course of business (the "Station Contracts");
(d) all of Seller's rights in and to the Station's call letters and
Seller's rights in and to the trademarks, trade names, service marks,
franchises, copyrights, including registrations for any of the foregoing,
computer software, programs and programming material, jingles, slogans, logos,
and other intangible property which are used exclusively in the operation of the
Station 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 Station, including the Station's local public files, programming
information and studies, blueprints, technical information and engineering data,
advertising studies, marketing and demographic data, sales correspondence, lists
of advertisers, credit and sales reports, contracts to be assigned hereunder,
records relating to employees hired by Buyer, 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 Station (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 present and continued
use thereof in the ordinary course of the business of the Station, and (iv) any
items listed on Schedule 1.1(b) (collectively, "Permitted Liens").
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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;
(b) all accounts receivable or notes receivable arising in the
operation of the Station 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, provided however, that Seller
shall reasonably cooperate with Buyer with regard to the extension or renewal of
any such contracts for which Buyer provides written notice to Seller that Buyer
desires to extend or renew;
(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 Station, and all records not relating exclusively to the
operation of the Station;
(f) contracts of insurance, and all insurance proceeds or claims
made thereunder, except to the extent such proceeds are paid to Buyer pursuant
to Section 17.1;
(g) except as provided 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;
(h) certain of Seller's FM towers and FM tower sites described on
Schedule 1.2(h), all other rights, properties and assets described on Schedule
1.2(h), and all rights, properties and assets not specifically described in
Section 1.1; and
(i) Seller's rights in the name "AMFM" or "Clear Channel" and
variations thereof.
1.3. Lease Agreements. At Closing, Buyer and Seller shall enter into
the lease agreements described on Schedule 1.2(h) pursuant to leases in the form
of Exhibit A attached hereto.
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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 Station for cash at commercially reasonable rates and
in the ordinary course of business ("Time Sales Agreements") and all agreements
for the sale of advertising time on the Station for non-cash consideration
arising in the ordinary course of business of Seller consistent with past
practices ("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").
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, Two Million and 00/100 Dollars ($2,000,000.00),
less the Deposit (as defined below), subject to adjustment pursuant to Sections
3.3 (the "Purchase Price").
3.2. Deposit. Within two (2) business days of the date of this
Agreement (with no cure period), Buyer shall deposit an amount equal to 25% of
the Purchase Price (the "Deposit") with NationsBank/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 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 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.
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 Station
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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 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 & Pecaro (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). Seller shall provide Buyer with notice
of the Closing Date at least three (3) business days prior to Closing, however,
Seller reserves the right to extend the Closing Date without penalty. 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
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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
Hart-Scott-Rodino 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. 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 Station and terminating
any agreements to acquire or program or market any Station.
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 on the Closing Date will be 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
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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 qualified to be the licensee of,
acquire, own and operate the Station under the Communications Act of 1934, as
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 Station. 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 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. Each Seller is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization. Each
Seller is qualified to do business in the applicable jurisdiction which its
Station Assets are located. Each 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 each Seller have been duly
authorized and approved by all
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necessary action of each Seller and do not require any further authorization or
consent of any Seller. This Agreement is, and each Seller Ancillary Agreement
when executed and delivered by each Seller, respectively, and the other parties
thereto will be, a legal, valid and binding agreement of each 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 any Seller of
this Agreement and the Seller Ancillary Agreements or the consummation by any
Seller of any of the transactions contemplated hereby or thereby nor compliance
by any Seller with or fulfillment by any Seller of the terms, conditions and
provisions hereof or thereof will: (i) conflict with any organizational
documents of any Seller or any law, judgment, order, or decree to which any
Seller is subject or, except as set forth on Schedule 1.1(c), any Station
Contract; or (ii) require the approval, consent, authorization or act of, or the
making by any 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 Station.
The Station 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 Station's business, filed all
foreign, federal, state, county and local income, excise, property, sales, use,
franchise and other tax returns and reports which are required to have been
filed by it under applicable law and has paid all taxes which have become due
pursuant to such returns or pursuant to any assessments which have become
payable.
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
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"Real Property Leases"). The Owned Real Property includes, and the Real Property
Leases provide, access to the Station's 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, 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 Station.
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
Station. There is no action, suit or proceeding pending or threatened against
Seller in respect of the Station 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 Station
(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.
7.13. Financial Statements. Seller has delivered to Buyer copies of the
unaudited results of operations of the Station for the twelve-month period ended
December 31, 1999 prepared in accordance with the books and records of the
Station, and such reports fairly represent the results of operations of the
Station for the period indicated.
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ARTICLE 8: ACCOUNTS RECEIVABLE
8.1. Accounts Receivable. All accounts receivable arising prior to the
Closing Date in connection with the operation of the Station, 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 180 days 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.
ARTICLE 9: COVENANTS OF SELLER
9.1. Seller's Covenants. Seller covenants and agrees with respect to
the Station 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 Station 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, and permit Buyer's on-site access to the
Station Assets with Seller's prior approval after the FCC Application is filed,
at Buyer's expense and provided such request and on-site visits do not interfere
unreasonably with the business of the Station;
(d) Seller will, upon Buyer's request and for each month following
the date hereof, provide to Buyer copies of the unaudited results of operations
of the Station for which such reports are generated for each month between the
date hereof and the Closing Date prepared in accordance with the books and
records of the Station.
9.2. Audit. Seller shall cooperate, and use its reasonable best efforts
to cause its
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independent auditors to reasonably cooperate, with Buyer in order to enable
Buyer to have independent auditors selected by Buyer, and at Buyer's expense,
prepare audited financial statements for the Station for the three most recently
completed fiscal year-ends. Without limiting the generality of the foregoing,
Seller agrees that it will consent to the use of such audited financial
statements in any registration statement or other document filed by Buyer under
Securities Act of 1933 and the Securities and Exchange Act of 1934. Seller shall
give or cause the Station to give Buyer and Buyer's accountants, at Buyer's
expense, and reasonable request and upon reasonable notice, full and reasonable
access during normal business hours to Seller's financial records that Buyer may
reasonably request. The rights of Buyer under this Section shall not be
exercised in such a manner as to interfere unreasonably with the business of the
Station.
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 Station. Buyer shall not, directly or indirectly,
control, supervise or direct the operations of the Station 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 Contract, with Seller making
available to Buyer the benefits thereof and Buyer performing the obligations
thereunder on Seller's behalf, provided, however, that 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, incurred by Buyer during the first six (6) months following the
Closing Date as a result of Seller's failure to have obtained a consent to
assignment with respect to the lease for the main transmitter site listed on
Schedule 1.1(f) from which the Station's signals are broadcast. Seller shall be
released from all indemnification obligations with respect to Seller's failure
to have obtained a consent to assignment with respect to any of the leases for
the main transmitter sites from which the Station's signals are broadcast six
(6) months after the Closing Date.
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10.4. Employee Matters.
(a) Prior to Closing, Seller shall deliver to Buyer a list of
employees of the Station 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 hired by Buyer ("Transferred Employees"), 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 such hired 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 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 plans. For purposes of any length of service requirements,
waiting periods, vesting periods or differential benefits based on length of
service in any such plan for which such employees may be eligible after Closing,
Buyer shall ensure that service with Seller shall be deemed to have been service
with the Buyer. In addition, Buyer shall ensure that each such employee receives
credit under any welfare benefit plan of Buyer for any deductibles or
co-payments paid by such employees and dependents for the current plan year
under a plan maintained by Seller. Notwithstanding any other provision contained
herein, Buyer shall grant credit to each such employee for all unused sick leave
accrued as of Closing as an employee of Seller. Buyer shall assume and discharge
Seller's liabilities for the payment of all unused vacation leave accrued by
such employees as of Closing.
(b) From and after the 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 Seller's 401(k)
Savings Plan and Buyer shall remit such withheld amounts to Seller in a timely
fashion such that the outstanding loans do not go into default.
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
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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.
10.7. Environmental Report. After the filing of the FCC Application and
the public announcement of the execution of this Agreement, Seller will
cooperate with Buyer or Buyer's independent contractor for full access to the
Owned Real Property and Real Property Leases, and reasonable access to all
documents and employees relating to, or who have knowledge of, environmental
matters with respect to the Station.
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:
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
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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 and expenses 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;
(iii) the duly executed tower leases and subleases referred to in
Section 1.3. hereof; and
(iv) 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;
(iii) the duly executed tower leases and subleases referred to in
Section 1.3 hereof; and
(iv) 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 twelve (12)
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 (Assumed Obligations), 3.3 (Adjustments), 3.4
(Allocation), 8.1 (Accounts Receivable) and 13.1 (Expenses), and indemnification
obligations with respect to such provisions, all of 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 Station before Closing; provided that (i)
Seller shall have no liability to Buyer hereunder until, and only to the extent
that, Buyer's aggregate Damages exceed $75,000 and (ii) the maximum liability of
Seller hereunder shall be $500,000.
(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 Station 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
16
obligations and liabilities of the parties with respect to any Claim shall be
subject to the following additional terms and conditions:
(a) The indemnifying party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense or opposition
to such Claim.
(b) In the event that the indemnifying party shall elect not to
undertake such defense or opposition, or, within twenty (20) days after written
notice (which shall include sufficient description of background information
explaining the basis for such Claim) of any such Claim from the indemnified
party, the indemnifying party shall fail to undertake to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
(c) Anything herein to the contrary notwithstanding: (i) the
indemnified party shall have the right, at its own cost and expense, to
participate in the defense, opposition, compromise or settlement of the Claim;
(ii) the indemnifying party shall not, without the indemnified party's written
consent, settle or compromise any Claim or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim; and (iii) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party and their respective counsel or other
representatives shall cooperate in good faith with respect to such Claim.
(d) All claims not disputed shall be paid by the indemnifying
party within thirty (30) days after receiving notice of the Claim. "Disputed
Claims" shall mean claims for Damages by an indemnified party which the
indemnifying party objects to in writing within thirty (30) days after receiving
notice of the Claim. In the event there is a Disputed Claim with respect to any
Damages, the indemnifying party shall be required to pay the indemnified party
the amount of such Damages for which the indemnifying party has, pursuant to a
final determination, been found liable within ten (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
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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:
(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.
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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
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 or if this
Agreement is otherwise terminated by Seller pursuant to Section 16.1(c), then
the Deposit and any interest accrued thereon shall be paid to Seller, and such
payment shall constitute liquidated damages. 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 of the Station
Assets 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. If insurance proceeds payable with respect to
the lost or damaged asset are insufficient to repair or replace such asset,
Buyer shall receive a credit at Closing against the Purchase Price equal to the
cost of repair or replacement less the amount of insurance proceeds assigned to
Buyer.
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, provided, however, that either party
may assign this Agreement to one or more entities that control, are controlled
by, or are under common control with, such party, so long as
19
(i) the assigning party remains liable hereunder, (ii) the assignment is made
prior to any filings with the FCC, FTC, DOJ, including any HSR filing, and (ii)
such assignment will not delay any consent required to be obtained hereunder,
including but not limited to HSR Clearance, DOJ Consent and FCC Consent, or
delay the Closing in any respect. 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):
if to Seller: c/o Clear Channel Broadcasting, Inc.
200 Concord Plaza, Suite 600
San Antonio, Texas 78216
Attention: President
Facsimile: (210) 822-2299
with a copy (which shall not
constitute notice) to: Graydon, Head & Ritchey
1900 Fifth Third Center
511 Walnut Street
Cincinnati, Ohio 45202
Attention: John J. Kropp, Esq.
Facsimile: (513) 651-3836
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if to Buyer: Blue Chip Broadcasting, Ltd.
1821 Summit Road, Suite 401
Cincinnati, Ohio 45237
Attention: L. Ross Love, President
Facsimile: (513) 679-6019
with a copy (which shall not
constitute notice) to:
Dinsmore & Shohl LLP
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202
Attn: Calvin D. Buford , Esq.
Facsimile: (513) 977-8141
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.
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 Station.
[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: AMFM Ohio, Inc.
By:
---------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
AMFM Radio Licenses LLC
By:
---------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
22
BUYER: Blue Chip Broadcasting, Ltd.
By:
----------------------------------------------
L. Ross Love, President
Blue Chip Broadcasting Licenses, Ltd.
By:
----------------------------------------------
L. Ross Love, President
23
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