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EXHIBIT 2.8
ASSET EXCHANGE AGREEMENT
THIS ASSET EXCHANGE AGREEMENT (this "Agreement") is made as of October 2,
2000, among the company or companies designated as Clear Channel on the
signature page hereto (collectively, "Clear Channel"), the companies designated
as Exchange Party on the signature page hereto (collectively, "Exchange Party"),
and solely for the purpose set forth on the joinder signature page hereto,
Charles E. Giddens, not in his individual capacity, but in his capacity as
Trustee (the "Trustee") of The CCU/AMFM Trust I.
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") and subject to the
Trust (defined below):
WNCE-FM, Palmyra, Pennsylvania
WNNK-FM, Harrisburg, Pennsylvania
WTCY(AM), Harrisburg, Pennsylvania
WTPA(FM), Mechanicsburg, Pennsylvania
B. The Clear Channel Stations are subject to a trust (the "Trust") pursuant
to Trust Agreement with the Trustee.
C. Exchange Party owns and operates the following radio broadcast stations
(collectively, including the Muskegon Stations as hereinafter defined, the
"Exchange Party Stations") pursuant to certain authorizations issued by the FCC:
Jonesboro, Arkansas KIYS-FM, Jonesboro, Arkansas
KBTM-AM, Jonesboro, Arkansas
KFIN-FM, Jonesboro, Arkansas
Augusta, Georgia WZNY-FM, Augusta, Georgia
WEKL-FM, Augusta, Georgia
WBBQ-FM, Augusta, Georgia
WBBQ-AM, Augusta, Georgia
WGUS-AM, North Augusta, Georgia
WKSP-FM, Aiken, South Carolina
WPRW-FM, Martinez, Georgia
Augusta-Waterville, Maine WIGY-FM, Madison, Maine
WFAU-AM, Gardiner, Maine
WABK-FM, Gardiner, Maine
WTOS-FM, Skowhegan, Maine
WKCG-FM, Augusta, Maine
WCME-FM, Boothbay Harbor, Maine
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Florence/Muscle Shoals, Alabama WLAY-AM, Muscle Shoals, Alabama
WLAY-FM, Tuscumbia, Alabama
WKGL-FM, Russellville, Alabama
WVNA-FM, Tuscumbia, Alabama
WVNA-AM, Muscle Shoals, Alabama
Tupelo, Mississippi WKMQ-AM, Tupelo, Mississippi
WTUP-AM, Tupelo, Mississippi
WWKZ-FM, Aberdeen, Mississippi
WWZD-FM, New Albany, Mississippi
WESE-FM, Baldwyn, Mississippi
Marion-Carbondale, IL WVZA-FM, Herron, IL
WFRX-AM, West Frankfort, IL
WTAO-FM, Murphysboro, IL
WDDD-AM. Johnston City, IL
WHTE-AM, Johnston City, IL
WDDD-FM, Marion, IL
WQUL-FM, West Frankfort, IL
Laurel-Hattiesburg, Mississippi WEEZ-AM, Laurel, Mississippi
WJKX-FM, Ellisville, Mississippi
WHER-FM, Heidelberg, Mississippi
WUSW-FM, Hattiesburg, Mississippi
WMFM-FM, Petal, Mississippi
WFOR-AM, Hattiesburg, Mississippi
WNSL-FM, Laurel, Mississippi
D. Exchange Party supplies programming and marketing services to, and is
acquiring, the following radio stations (the "Muskegon Stations") from
Connoisseur Communications of Muskegon, L.P. and its affiliates pursuant to an
Asset Purchase Agreement ("Muskegon APA") and a Local Marketing Agreement
("Muskegon LMA"), both dated November 29, 1999:
Muskegon, Michigan WMUS-FM, Muskegon, Michigan
WMUS-AM, Muskegon, Michigan
WMRR-FM, Muskegon Heights, Michigan
WMHG-AM, Muskegon, Michigan
WSHZ-FM, Muskegon, Michigan
E. Subject to the terms and conditions set forth herein, the parties desire
to exchange the Clear Channel Station Assets (defined below) for certain of the
Exchange Party Station Assets (defined below), and to effect the sale by
Exchange Party, and the purchase of replacement property by Clear Channel
through a Qualified Intermediary, as hereinafter defined, of certain other
Exchange Party Station Assets for the Cash Amount (defined below). The parties
intend the exchange of Clear Channel Station Assets and Exchange Party Station
Assets 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"), and that such exchange and the sale of Exchange Party
Station Assets to Clear Channel for cash as qualified replacement property be
considered separate transactions.
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F. Pursuant to a Tangible Property Purchase Agreement of even date herewith
("TPPA"), Clear Channel will purchase certain assets used in the operation of
the Exchange Party Stations on October 2, 2000, and Clear Channel and Exchange
Party will enter into local marketing agreements with respect to the Exchange
Party Stations and the Clear Channel Stations.
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 exclusively in the operation of the Clear Channel
Stations and specifically described in this Section 1.1, but excluding the Clear
Channel Excluded Assets as hereafter defined (the "Clear Channel Station
Assets"):
(a) 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;
(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
Clear Channel Stations and listed on Schedule 1.1(b), except any retirements or
dispositions thereof made between the date hereof and Closing in the ordinary
course of business and consistent with past practices of Clear Channel (the
"Clear Channel Tangible Personal Property");
(c) 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");
(d) 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,
domain names, domain name registrations, service marks, franchises, copyrights,
computer software, programs and programming material, jingles, slogans, logos,
and other intangible property which are used exclusively in the operation of the
Clear Channel Stations and listed on Schedule 1.1(d) (the "Clear Channel
Intangible Property");
(e) Clear Channel's rights in and to all the files, documents, records,
and books of account (or copies thereof) relating exclusively to the operation
of the Clear Channel Stations, including the Clear Channel Stations' local
public files, programming information and
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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 Clear Channel Excluded Assets (defined below);
(f) any real property which is used exclusively 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");
(g) any and all claims and rights against third parties if and to the
extent that they relate to the Clear Channel Station Assets, including, without
limitation, all rights under manufacturers' and vendors' warranties;
(h) all deposits, reserves and prepaid expenses relating to the Clear
Channel Stations and prepaid taxes relating to the Clear Channel Stations or the
Clear Channel Station Assets;
(i) all of Clear Channel's goodwill in, and going concern value of, the
Clear Channel Stations; and
(j) without limiting the foregoing, all interests of Clear Channel in
all internet web sites relating primarily to the Clear Channel Stations,
including without limitation all internet Domain leases and Domain names of the
Clear Channel Stations, the unrestricted right to the use of HTML content
located and publicly accessible from those Domain names, and the "visitor" email
database for those sites.
The Clear Channel Station Assets shall be transferred to Exchange Party
free and clear of 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, easements, rights of way, building and use
restrictions, exceptions, reservations and limitations that do not in any
material respect detract from the value of the property subject thereto or
impair the use thereof in the ordinary course of the business of the 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"):
(a) 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;
(b) all accounts receivable or notes receivable arising in the
operation of the Clear Channel Stations prior to Closing;
(c) 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;
(d) all Clear Channel Station Contracts that terminate or expire prior
to Closing in the ordinary course of business of Clear Channel;
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(e) 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 Channel Stations, and all records not
relating exclusively to the operation of the Clear Channel Stations;
(f) contracts of insurance, and all insurance proceeds or claims made
thereunder;
(g) all pension, profit sharing or cash or deferred (Section 401(k))
plans and trusts and the assets thereof and any other employee benefit plan or
arrangement and the assets thereof, if any, maintained by Clear Channel; and
(h) all rights, properties and assets described on Schedule 1.2(h), and
all rights, properties and assets not specifically described in Section 1.1.
1.3. 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 which are used exclusively in the operation
of the Exchange Party Stations and specifically described in this Section 1.3,
but excluding the Exchange Party Excluded Assets as hereafter defined (the
"Exchange Party Station Assets"):
(a) 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") and described on Schedule 1.3(a), including any
renewals or modifications thereof between the date hereof and Closing;
(b) 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(b), 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");
(c) 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, domain names, domain name registrations, service marks, franchises,
copyrights, computer software, programs and programming material, jingles,
slogans, logos, and other intangible property which are used exclusively in the
operation of the Exchange Party Stations and listed on Schedule 1.3(c) (the
"Exchange Party Intangible Property");
(d) Exchange Party's rights in and to all the files, documents,
records, and books of account (or copies thereof) relating exclusively to the
operation of the Exchange Party Stations, including 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);
(e) any and all claims and rights against third parties if and to the
extent that they relate to the Exchange Party Station Assets;
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(f) all deposits, reserves and prepaid expenses relating to the
Exchange Party Stations and prepaid taxes relating to the Exchange Party
Stations or the Exchange Party Station Assets;
(g) all of the Exchange Party's goodwill in, and going concern value
of, the Exchange Party Stations; and
(h) without limiting the foregoing, all interests of Exchange Party in
all internet web sites relating primarily to the Exchange Party Stations,
including without limitation all internet Domain leases and Domain names of the
Exchange Party Stations, the unrestricted right to the use of HTML content
located and publicly accessible from those Domain names, and the "visitor" email
database for those sites.
The Exchange Party Station Assets shall be transferred to Clear Channel
free and clear of 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 3.2, and (iii) any items
listed on Schedule 1.3(h) (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"):
(a) 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;
(b) all accounts receivable or notes receivable arising in the
operation of the Exchange Party Stations prior to Closing;
(c) 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;
(d) all Exchange Party Station Contracts that terminate or expire prior
to Closing in the ordinary course of business of Exchange Party;
(e) 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;
(f) contracts of insurance, and all insurance proceeds or claims made
thereunder;
(g) all pension, profit sharing or cash or deferred (Section 401(k))
plans and trusts and the assets thereof and any other employee benefit plan or
arrangement and the assets thereof, if any, maintained by Exchange Party;
(h) any rights, properties or assets described on Schedule 1.4(h), and
all rights, properties and assets not specifically described in Section 1.3; and
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(i) The Exchange Party Station tangible assets and real property sold
to Clear Channel pursuant to the TPPA.
1.5. Noncompete. On the Closing Date, Exchange Party (on behalf of it and
all of its Affiliates (defined below)) shall enter into a one year
Noncompetition Agreement in the form of Exhibit B attached hereto (the
"Noncompetition Agreement"), for consideration determined pursuant to the final
sentence of this Section 1.6. Exchange Party shall also assign to, and enforce
for the benefit of, Clear Channel any noncompetition agreements or rights in
Exchange Party's favor under the Muskegon APA. In connection with the allocation
under Section 3.3, a portion of the Cash Amount shall be allocated as
consideration for the Noncompetition Agreement.
1.6. LMA. On October 2, 2000, Clear Channel and Exchange Party shall enter
into a local marketing agreement, effective as of such date, in substantially
the form attached hereto as Exhibit B, pursuant to which Exchange Party will
provide programming for, and be entitled to receive revenues from the sale of
advertising on, the Clear Channel Stations.
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,
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 otherwise and whether or not disclosed to Exchange
Party, other than the Exchange Party Assumed Obligations (the "Clear Channel
Retained Obligations").
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ARTICLE 3: CASH PAYMENT
3.1. Cash Payment. The parties agree that the aggregate value of the
Exchange Party Station Assets exceeds the aggregate value of the Clear Channel
Station Assets by an amount equal to Thirty Seven Million Dollars ($37,000,000)
(the "Cash Amount"). Clear Channel shall at Closing (defined below) deliver to
Exchange Party by wire transfer of immediately available funds the Cash Amount,
subject to adjustment pursuant to Section 3.2.
3.2. Prorations and Adjustments.
(a) 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, 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. The prorations and adjustments
contemplated by this Section 3.2 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.
(b) With respect to Exchange Party Trade Agreements assumed by Clear
Channel pursuant to Section 2.1, if any, if there exists on the date of
assumption an aggregate negative barter balance (i.e., the amount by which the
value of air time (based upon the Exchange Party Stations' then prevailing
rates) to be provided exceeds the fair market value of goods or services to be
received therefor), then such excess will be treated as prepaid time sales and
adjusted for as a proration in Clear Channel's favor. If, however, there exists
on such date an aggregate positive barter balance (i.e., the amount by which the
value of airtime (based upon the Exchange Party Stations' then prevailing rates)
to be provided is less than the fair market value of goods or services to be
received therefor) with respect to Exchange Party Trade Agreements assumed by
Clear Channel, there shall be no proration in Exchange Party's favor.
(c) With respect to Clear Channel Trade Agreements assumed by Exchange
Party pursuant to Section 2.3, if any, if there exists on the date of assumption
an aggregate negative barter balance (i.e., the amount by which the value of air
time (based upon the Clear Channel Stations' then prevailing rates) to be
provided exceeds the fair market value of goods or services to be received
therefor), then such excess will be treated as prepaid time sales and adjusted
for as a proration in Exchange Party's favor. If, however, there exists on such
date an aggregate positive barter balance (i.e., the amount by which the value
of airtime (based upon the Clear Channel Stations' then prevailing rates) to be
provided is less than the fair market value of goods or services to be received
therefor) with respect to Clear Channel Trade Agreements assumed by Exchange
Party, there shall be no proration in Clear Channel's favor. (d) Payment of the
Cash Amount at Closing shall be subject to any offsets of amounts due Buyer by
Seller under the Asset Purchase Agreement dated September 6, 2000, as amended,
and the Phase II Closing and Post Closing Agreement dated October 2, 2000, by
and between Seller and Buyer.
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3.3. Allocations and Exchange Assets and Replacement Assets Designations.
(a) The values of the assets comprising the Clear Channel Station
Assets and the Exchange Party Station Assets shall be determined by an appraisal
(the "Appraisal") prepared by Bond & Pecaro (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.
(b) Before or after Closing, Clear Channel shall determine and 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. ss. 1.1031(j)-1) and residual replacement property
groups and (ii) set forth the total value of the assets making up each such
exchange group and residual replacement property group (based upon the
Appraisal). For tax purposes, the parties shall report the exchanges 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.
(a) The consummation of the exchange of assets under this Agreement
(the "Closing") shall occur on a date (the "Closing Date") within five (5)
business days after the grant of FCC Consent (defined below), which date shall
be designated solely by Clear Channel, and at a time and place designated solely
by Clear Channel, subject to satisfaction or waiver of the conditions to Closing
contained herein (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.
(b) Clear Channel may elect to consummate the exchange and replacement
property purchase of the Clear Channel Station Assets and the Exchange Party
Stations Assets in any number of separate Closings (each a "Partial Closing") in
the following events. With respect to each market identified in Recital A,
Recital C and Recital D above (each a "Market"), if FCC Consent with respect to
all the stations in one or more of the Markets is granted but FCC Consent for
assignment of all of the stations in any other such Markets has not been granted
at that time at, Clear Channel's option, the parties shall close the acquisition
of the stations in the Markets for which FCC Consent has been granted for all
stations in such Markets and postpone the Closing of the stations in the Markets
for which FCC Consent has not been granted for all stations in such Markets,
provided, however, that the closing of the exchange of Clear Channel Station
Assets for Exchange Party Station Assets shall be subject to the availability of
appropriate like-kind exchange property for the Clear Channel Station Assets. In
the event of such multiple closings: (i) the Clear Channel Station Assets, the
Exchange Party Station Assets and the Cash Amount shall be allocated pursuant to
Section 3.3; (ii) the terms "Closing" and the "Closing Date" as used herein
shall mean, and refer separately to, each Partial Closing and the date on which
such Partial Closing occurs, as the context requires; (iii) the covenants set
forth in Articles 9 and 10 and the other provisions of this Agreement that apply
prior to Closing (or prior to the Closing Date) shall continue in effect with
respect to the stations subject to the subsequent Closings (but not the stations
subject to the Closing except with respect to obligations that expressly survive
the Closing and except that neither party shall be relieved of liability for a
failure to comply with
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such covenants prior to Closing); (iv) the conditions set forth in Articles 11
and 12, and the deliveries to be made pursuant to Article 14, that relate to the
stations or the station assets generally, shall apply, and shall be made, only
with respect to the stations and station assets subject to the Closing; and (v)
the provisions of Article 15 and the other provisions of this Agreement that
apply after Closing (or after the Closing Date) shall apply with respect to each
station only from and after the Closing with respect to such station.
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) expiration or
termination of any applicable waiting period ("HSR Clearance") under the HSR Act
(defined below), and (iii) United States Department of Justice ("DOJ") prior
approval ("DOJ Consent") of the transactions contemplated hereby.
5.1. FCC. Clear Channel and Exchange Party have filed 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.
5.2. HSR. Clear Channel and Exchange Party have made filings with the
Federal Trade Commission and the Department of Justice 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 HSR Clearance has been
obtained.
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
such the other may reasonably request in connection with their preparation of
any governmental filing hereunder. Without limiting the foregoing, both parties
shall cooperate with the FCC and the DOJ in connection with obtaining the FCC
Consent and the DOJ Consent, and shall promptly provide all information and
documents requested by the FCC or the DOJ in connection therewith. If either
party becomes aware of any fact relating to it which would prevent or delay the
FCC Consent or the DOJ Consent, such party shall promptly notify the other party
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 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.
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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 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). 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.
There is not pending any action by or before the 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. All
items of Clear Channel Tangible Personal Property, including without limitation
equipment and electrical devices, are in good operating condition and repair
(reasonable wear and tear in ordinary usage excepted), are free from material
defect and damage, are functioning in the manner and for the purposes for which
it was intended, have been maintained in accordance with industry standards in
all material respects, and do not require any repairs other than normal routine
maintenance.
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6.7. Real Property. Schedule 1.1(f) contains a description of all Clear
Channel Real Property included in the Clear Channel Station Assets. 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 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.
6.8. 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.
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
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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 threatened against Clear Channel which could materially adversely
affect Clear Channel's ability to perform its obligations hereunder.
6.14. Litigation. To Clear Channel's knowledge, there are no suits,
arbitrations, administrative charges or other legal proceedings, claims or
governmental investigations pending against, or threatened against, the Clear
Channel Stations or Clear Channel relating to or affecting the Clear Channel
Stations nor, to the best of the knowledge of Clear Channel, is there any basis
for any such suit, arbitration, administrative charge or other legal proceeding,
claim or governmental investigation. Clear Channel has not been operating under
or subject to, or in default with respect to, any judgment, order, writ,
injunction or decree of any court or federal, state, municipal or other
governmental department, commission, board, agency or instrumentality, foreign
or domestic.
6.15. Disclosure. No provision or information contained in this Agreement
relating to Clear Channel, the Clear Channel Stations or the Clear Channel
Station Assets, or in any Schedule or Exhibit hereto, or the information to be
provided to Exchange Party pursuant hereto, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
required to be stated in order to make the statement, in light of the
circumstances in which it is made, not misleading. Except for facts affecting
the radio industry generally, there is no adverse fact now known to Clear
Channel relating to the Clear Channel Stations or the Clear Channel Station
Assets which would have a material adverse impact on the Clear Channel Station
Assets or the operation of the Clear Channel Stations after the Closing which
has not been disclosed to Exchange Party.
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).
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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 HSR Clearance.
7.4. FCC Licenses. Exchange Party is the holder (or in the case of the FCC
Licenses for the Muskegon Stations, at Closing will be the holder) of the
Exchange Party FCC Licenses described on Schedule 1.3(a). 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. 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.
7.5. 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.
7.6. 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 (or in the case of Exchange Party Station
Contracts used in the operation of the Muskegon Stations, will be binding upon
Exchange Party at Closing) 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.
7.7. Intangible Property. Schedule 1.3(c) 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(c), 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(c), Exchange Party owns or has the right to use (or in the case of Exchange
Party Intangible Property used in the operation of the Muskegon Stations, at
Closing will own or have the right to use) the Exchange Party Intangible
Property free and clear of Liens other than Exchange Party Permitted Liens.
7.8. 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
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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).
7.9. 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.
7.10. 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.
7.11. Final Judgment. Exchange Party acknowledges that this transaction is
subject to and being made in fulfillment of the terms of the Final Judgment of
the U.S. District Court for the District of Columbia in U.S. v. Clear Channel
Communications, Inc. and AMFM Inc., a copy of which has been provided to
Exchange Party. In connection therewith, Exchange Party represents and warrants
to Clear Channel that it has the intent and it believes it has the capability
(including the necessary managerial, operational, and financial capability) of
competing effectively in the commercial radio broadcasting business in the
Harrisburg, Pennsylvania market, and that it currently intends to own and
operate, and not to resell, the Clear Channel Stations.
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7.12. Financial Statements.
(a) Schedule 7.12 hereto are copies of (i) the unaudited balance sheets
of the Exchange Party Stations as of December 31, 1998 (to the extent available
to Exchange Party), December 31, 1999, and June 30, 2000 (the "Balance Sheet
Date"), and (ii) the unaudited statements of income of the Exchange Party
Stations for the calendar years December 31, 1998 (to the extent available to
Exchange Party) and December 31, 1999, and for the eight month period ended
August 31, 2000 (the "Financial Statements"). The Financial Statements are
complete and correct in all material respects, have been prepared from the books
and records regularly maintained by the Exchange Party and the selling
companies, as the case may be, and present fairly, and in all material respects,
the financial position of the Exchange Party Stations as of the dates thereof
and the results of the Exchange Party Stations' operations for the periods
indicated thereby, in accordance with generally accepted accounting principles.
Clear Channel may conduct an audit of Exchange Party's books and records at any
time upon reasonable prior notice to Exchange Party.
(b) Based upon Exchange Party's statements of income through August,
2000, and Exchange Party's projected sales by Exchange Party for the remainder
of 2000, the broadcast cash flow of the Exchange Party Stations for calendar
year 2000 would be not less than $6,737,000, it being understood that such
projections are based upon the operation of the Stations by Exchange Party and
do not predict future operation thereof by Clear Channel. As used herein,
"broadcast cash flow" means net cash income from the sale of advertising time
(before interest, income tax, depreciation and amortization). Exchange Party
acknowledges and understands that the exchange of the Clear Channel Stations for
certain Exchange Party Stations and the Cash Amount are based upon a multiple of
broadcast cash flow.
7.13. Litigation. There are no suits, arbitrations, administrative charges
or other legal proceedings, claims or governmental investigations pending
against, or, to Exchange Party's knowledge, threatened against, the Exchange
Party Stations or Exchange Party relating to or affecting the Exchange Party
Stations nor, to the best of the knowledge of Exchange Party, is there any basis
for any such suit, arbitration, administrative charge or other legal proceeding,
claim or governmental investigation. Exchange Party has not been operating under
or subject to, or in default with respect to, any judgment, order, writ,
injunction or decree of any court or federal, state, municipal or other
governmental department, commission, board, agency or instrumentality, foreign
or domestic.
7.14. Disclosure. No provision or information contained in this Agreement
relating to Exchange Party, the Exchange Party Stations or the Exchange Party
Station Assets, or in any Schedule or Exhibit hereto, contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact required to be stated in order to make the statement, in light of
the circumstances in which it is made, not misleading. Except for facts
affecting the radio industry generally, there is no adverse fact now known to
Exchange Party relating to the Exchange Party Stations or the Exchange Party
Station Assets or the which would have a material adverse impact on the Exchange
Party Station Assets or the operation of the Exchange Party Stations after the
Closing which has not been disclosed to Clear Channel.
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
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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 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 Clear Channel Accounts Receivable that are paid directly to Clear Channel
shall be retained by Clear Channel. 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 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 Exchange Party Accounts
Receivable that are paid directly to Exchange Party shall be retained by
Exchange Party. 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, subject to the Trust, 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:
(a) operate the Clear Channel Stations in the ordinary course of
business consistent with past practice and in all material respects in
accordance with FCC rules and regulations and with all other applicable laws,
regulations, rules and orders;
(b) not, other than in the ordinary course of business in accordance
with past practice, sell, lease or dispose of or agree to sell, lease or dispose
of any of the Clear Channel Station Assets, or create, assume or permit to exist
any Liens upon the Clear Channel Station Assets, except for Clear Channel
Permitted Liens; and,
(c) furnish Exchange Party with such information relating to the Clear
Channel Station Assets as Exchange Party may reasonably request, at Exchange
Party's expense
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and provided such request does not interfere unreasonably with the business of
the Clear Channel Stations.
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:
(a) operate the Exchange Party Stations in the ordinary course of
business consistent with past practice and in all material respects in
accordance with FCC rules and regulations and with all other applicable laws,
regulations, rules and orders;
(b) not, other than in the ordinary course of business in accordance
with past practice, sell, lease or dispose of or agree to sell, lease or dispose
of any of the Exchange Party Station Assets, or create, assume or permit to
exist any Liens upon the Exchange Party Station Assets, except for Exchange
Party Permitted Liens; and,
(c) furnish Clear Channel with such information relating to the
Exchange Party Station Assets as Clear Channel may reasonably request, at Clear
Channel's expense and provided such request does not interfere unreasonably with
the business of the Exchange Party Stations.
ARTICLE 10: JOINT COVENANTS
Clear Channel and Exchange Party hereby covenant and agree that, subject to
the Trust, 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.
10.4. Employee Matters. Prior to Closing, each party shall deliver to the
other a list of employees of its stations that it does not intend to retain
after Closing. The acquiring party may
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interview and elect to hire such listed employees, but not any other employees
of the conveying party. 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 potentially to be hired by the acquiring party, 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. With respect to employees hired by the acquiring party ("Transferred
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 Transferred Employees to be
eligible to participate in its "employee welfare benefit plans" and "employee
pension benefit plans" (as defined in Sections 3(1) and 3(2) of ERISA,
respectively) in which the acquiring party's similarly-situated employees are
generally eligible to participate; provided, however, that all Transferred
Employees and their spouses and dependents shall be eligible for coverage
immediately after Closing (and shall not be excluded from coverage under any
employee welfare benefit plan that is a group health plan on account of any
pre-existing condition) to the extent provided under such employee welfare
benefit plans. For purposes of any length of service requirements, waiting
periods, vesting periods or differential benefits based on length of service in
any such employee welfare benefit plans for which Transferred Employees may be
eligible after Closing, the acquiring party shall ensure, to the extent
permitted by applicable law (including, without limitation, ERISA and the Code),
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, to the extent permitted by applicable law
(including, without limitation, ERISA and the Code), that Transferred Employees
receive credit under any welfare benefit plan of the acquiring party for any
deductibles or co-payments paid by Transferred Employees and their spouses and
dependents for the current plan year under a plan maintained by the conveying
party. Notwithstanding any other provision contained herein, the acquiring party
shall grant credit for all unused sick leave accrued by Transferred Employees on
the basis of their service during the current calendar year as employees of 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 Transferred Employees on the
basis of their service during the current calendar year as employees of the
conveying party. From and after 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 and/or Exchange
Party (either, an "Assigning Party") 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, the Assigning Party shall
promptly give written notice thereof to the other party hereto (the "Other
Party") and the Other Party shall cooperate with the reasonable requests of the
Assigning Party and any Qualified Intermediary in connection therewith. Without
limiting the generality of the foregoing, if an Assigning Party gives notice of
such assignment, the Other Party shall (i) promptly provide an Assigning Party
with written acknowledgment of such notice and (ii) at Closing, convey all or
part of the Exchange Party Station Assets or Clear Channel Station Assets, and
pay all or part of the Cash Amount, as the case may be, (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 the Other Party to make such conveyance and payment
hereunder). An Assigning Party's assignment to a Qualified Intermediary will not
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relieve the Assigning Party of any of its duties or obligations herein. Except
for the obligations of the Other Party set forth in this Section, the Other
Party shall not have any liability or obligation to the Assigning Party for the
failure of such other exchange to qualify as a like kind exchange under Section
1031 of the Code unless such failure is the result of the material breach or
default by the Other Party under this Agreement.
10.6. Trust. Notwithstanding anything to the contrary set forth in this
Agreement, the parties acknowledge and agree that the Clear Channel Stations are
subject to the Trust, and this Agreement shall become effective only upon
execution and delivery by the Trustee of the joinder signature page hereto.
Promptly upon execution of this Agreement by Clear Channel and Exchange Party,
Clear Channel will submit this Agreement to the Trustee for its consideration
(and if the Trustee does not execute and deliver the attached joinder within
five business days of such delivery, then this Agreement shall be void and of no
further force or effect). The Trustee shall have no liability to Exchange Party
under or in connection with this Agreement in his individual capacity. Exchange
Party's sole recourse shall be against Clear Channel and the Clear Channel
Station Assets.
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 shall have been
obtained, and no court or governmental order prohibiting Closing shall be in
effect.
11.3. Harrisburg Like-Kind Exchange. In the event of a Partial Closing
pursuant to Section 4.1(b) involving the exchange of the Clear Channel Stations
and Clear Channel Station Assets for Exchange Party Stations and Exchange Party
Station Assets, such exchange shall constitute a like-kind exchange pursuant to
Section 1031 of the Code.
11.4. TPPA. The transaction contemplated by the TPPA shall have been
consummated.
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
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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 shall have been
obtained, and no court or governmental order prohibiting Closing shall be in
effect.
12.3 TPPA. The transaction contemplated by the TPPA 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 Clear Channel
Station Assets shall be paid by Clear Channel, and all such charges and taxes
applicable to the transfer of the Exchange Party Station Assets shall be paid by
Exchange 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 Clear Channel and Exchange Party.
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:
(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
(iv) such documents and instruments of assumption as may be necessary
to assume the Clear Channel Assumed Obligations; and
(v) the Cash Amount in accordance with Section 3.1 hereof.
14.2. 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, 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; and
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(iv) such documents and instruments of assumption as may be necessary
to assume the Clear Channel Assumed Obligations.
ARTICLE 15: SURVIVAL; INDEMNIFICATION.
15.1. Survival. The covenants, agreements, representations and warranties in
this Agreement shall survive Closing for a period of six (6) months from the
Closing Date whereupon they shall expire and be of no further force or effect,
except those under (i) this Article 15 that relate to Damages (defined below)
for which written notice is given by the indemnified party to the indemnifying
party prior to the expiration, which shall survive until resolved and (ii) the
following provisions (the "Expense Provisions"): Sections 2.1 and 2.3 (Assumed
Obligations), 3.2 (Adjustments), 3.3 (Allocation), 8.1 and 8.2 (Accounts
Receivable) and 13.1 (Expenses), and indemnification obligations with respect to
such provisions, which shall survive until performed.
15.2. Indemnification.
(a) From and after the Closing, 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, except for the Expense Provisions (which shall not be
subject to such limitations), (y) 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 and (z) the maximum liability of Clear Channel
hereunder shall be $11,000,000.
(b) 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,
except for the Expense Provisions (which shall not be subject to such
limitations), (y) 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 and (z) the maximum liability of Exchange Party hereunder shall
be $15,000,000.
15.3. Procedures. The indemnified party shall give prompt written notice to
the indemnifying party of any demand, suit, claim or assertion of liability by
third parties or other circumstances that could give rise to an indemnification
obligation hereunder against the indemnifying party (a "Claim"), but a failure
to give such notice or delaying such notice shall not affect the indemnified
party's right to indemnification and the indemnifying party's obligation to
indemnify as set forth in this Agreement, except to the extent the indemnifying
party's ability to remedy, contest, defend or settle with respect to such Claim
is thereby prejudiced. The obligations and liabilities of the parties with
respect to any Claim shall be subject to the following additional terms and
conditions:
(a) The indemnifying party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense or opposition
to such Claim.
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(b) In the event that the indemnifying party shall elect not to
undertake such defense or opposition, or, within twenty (20) days after written
notice (which shall include sufficient description of background information
explaining the basis for such Claim) of any such Claim from the indemnified
party, the indemnifying party shall fail to undertake to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
(c) Anything herein to the contrary notwithstanding: (i) the
indemnified party shall have the right, at its own cost and expense, to
participate in the defense, opposition, compromise or settlement of the Claim;
(ii) the indemnifying party shall not, without the indemnified party's written
consent, settle or compromise any Claim or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim; and (iii) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party and their respective counsel or other
representatives shall cooperate in good faith with respect to such Claim.
(d) All claims not disputed shall be paid by the indemnifying party
within thirty (30) days after receiving notice of the Claim. "Disputed Claims"
shall mean claims for Damages by an indemnified party which the indemnifying
party objects to in writing within thirty (30) days after receiving notice of
the Claim. In the event there is a Disputed Claim with respect to any Damages,
the indemnifying party shall be required to pay the indemnified party the amount
of such Damages for which the indemnifying party has, pursuant to a final
determination, been found liable within ten (10) days after there is a final
determination with respect to such Disputed Claim. A final determination of a
Disputed Claim shall be (i) a judgment of any court determining the validity of
a Disputed Claim, if no appeal is pending from such judgment and if the time to
appeal therefrom has elapsed; (ii) an award of any arbitration determining the
validity of such disputed claim, if there is not pending any motion to set aside
such award and if the time within which to move to set aside such award has
elapsed; (iii) a written termination of the dispute with respect to such claim
signed by the parties thereto or their attorneys; (iv) a written acknowledgment
of the indemnifying party that it no longer disputes the validity of such claim;
or (v) such other evidence of final determination of a disputed claim as shall
be acceptable to the parties. No undertaking of defense or opposition to a Claim
shall be construed as an acknowledgment by such party that it is liable to the
party claiming indemnification with respect to the Claim at issue or other
similar Claims.
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 Clear Channel and Exchange Party;
(b) 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; or (ii) otherwise breaches in
any material respect any of its representations or
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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 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; 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 either party to the other if the FCC denies
the FCC Application or if the DOJ denies the request for DOJ Consent or if the
TPPA is terminated; or
(e) by written notice of Clear Channel to Exchange Party, or Exchange
Party to Clear Channel, if the Closing shall not have been consummated on or
before the first anniversary of the date of this Agreement.
The term "Cure Period" as used herein means a period commencing the
date a party receives from the other written notice of breach or default
hereunder and continuing until the earlier of (i) thirty (30) days thereafter or
(ii) the Closing Date; provided, however, that if the breach or default cannot
reasonably be cured within such period but can be cured before the Closing Date,
and if diligent efforts to cure promptly commence, then the Cure Period shall
continue as long as such diligent efforts to cure continue, but not beyond the
Closing Date. Except as set forth below, the termination of this Agreement shall
not relieve any party of any liability for breach or default under this
Agreement prior to the date of termination. 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. 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.
ARTICLE 17: WZNY Downgrade
17.1. Modification of Section 1.9 of Asset Purchase Agreement. The
acquisition of Exchange Party Station WZNY(FM), Augusta, Georgia, by Clear
Channel pursuant to this Agreement shall void and eliminate the obligation of
the Buyer pursuant to the Asset Purchase Agreement dated September 6, 2000, to
pay Exchange Party any consideration whatsoever for the downgrade of Station
WZNY(FM) under Section 1.9 of such Asset Purchase Agreement.
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ARTICLE 18: MISCELLANEOUS PROVISIONS
18.1. Further Assurances. After the Closing, each party shall from time to
time, at the request of and without further cost or expense to the other,
execute and deliver such other instruments and take such other actions as may
reasonably be requested in order to more effectively consummate the transactions
contemplated hereby to exchange assets and assume obligations as contemplated by
this Agreement.
18.2. Assignment. Except as set forth in Section 10.5 (1031 Exchange),
neither party may assign this Agreement without the prior written consent of the
other party hereto. With respect to any permitted assignment, the parties shall
take all such actions as are reasonably necessary to effectuate such assignment,
including but not limited to cooperating in any appropriate filings with the FCC
or other governmental authorities. All covenants, agreements, statements,
representations, warranties and indemnities in this Agreement by and on behalf
of any of the parties hereto shall bind and inure to the benefit of their
respective successors and permitted assigns of the parties hereto.
18.3. 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.
18.4. 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.
18.5. 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.
18.6. 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 Clear Channel: c/o Clear Channel Broadcasting, Inc.
200 Concord Plaza, Suite 600
San Antonio, Texas 78216
Attention: President
Facsimile: (210) 822-2299
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with a copy (which shall
not constitute notice) to: Wiley, Rein & Fielding
1776 K Street, N.W.
Washington, D.C. 20006
Attention: Richard J. Bodorff, Esq.
Facsimile: (202) 719-7049
if to Exchange Party: Cumulus Broadcasting, Inc.
3060 Peachtree Road, NW
Suite 730
Atlanta, GA 30305
Attention: Lewis W. Dickey, Jr.
Facsimile: (404) 949-0700
with a copy (which shall
not constitute notice) to: Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Avenue, N.W.
Tenth Floor
Washington, D.C. 20004
Attention: David D. Burns, Esq.
Facsimile: (202) 508-9700
18.7. 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.
18.8. 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.
18.9. 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.
18.10. 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
Clear Channel Stations.
18.11. Exchange Party Station Schedules. This Agreement is being executed
prior to delivery of schedules for the Exchange Party Stations, and is subject
to and contingent upon delivery of all such schedules by Exchange Party in form
and substance reasonably satisfactory to Clear Channel (the "Schedule
Condition") within twenty (20) business days after the date hereof. If the
schedules delivered by Exchange Party are not reasonably satisfactory to Clear
Channel, then within twenty (20) business days after receipt of all of the
Schedules Clear Channel, at its option, may terminate this Agreement by written
notice to Exchange Party or offset any Deficiencies disclosed as a result
thereof against the Cash Amount. Such Schedules may not include any contracts
with Affiliates of Exchange Party or identify any material Exchange Party
Excluded Assets or Liens other than Exchange Party Permitted Liens, it being
agreed that the Exchange Party Station Assets shall include all material assets
used or held for use in the operation of the Exchange
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Party Stations, free and clear of Liens other than Exchange Party Permitted
Liens (including without limitation all towers and tower sites).
[SIGNATURE PAGE FOLLOWS]
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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: CAPSTAR RADIO OPERATING COMPANY
By:
----------------------------------
Name:
Title:
CAPSTAR TX LIMITED PARTNERSHIP
By:
----------------------------------
Name:
Title:
EXCHANGE PARTY: CUMULUS BROADCASTING, INC.
By:
----------------------------------
Lewis W. Dickey, Jr.
President
CUMULUS LICENSING CORP.
By:
----------------------------------
Lewis W. Dickey, Jr.
President
CUMULUS WIRELESS SERVICES, INC.
By:
----------------------------------
Lewis W. Dickey, Jr.
President
29
TRUSTEE'S JOINDER SIGNATURE PAGE TO
ASSET PURCHASE AGREEMENT
The Trustee (in his capacity as Trustee and not in his individual capacity)
hereby authorizes Clear Channel to perform the obligations and exercise the
rights of Clear Channel under the Agreement on its behalf. Without limiting the
foregoing, the Trustee hereby authorizes Clear Channel to execute and deliver to
Exchange Party all documents to be delivered by Clear Channel at Closing under
the Agreement and any other documents (without need for the Trustee to execute
and deliver any further documents or take any further action).
TRUSTEE: THE CCU/AMFM TRUST I
By:
----------------------------------
Name: Charles E. Giddens
Title: Trustee
30
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) - Station Contracts
1.3(c) - Intangible Property
1.3(h) - Liens
1.4(h) - Excluded Assets
7.12 - Financial Statements
Exhibits
A - Noncompetition Agreement
B - LMA