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EXHIBIT 2.2
ASSET EXCHANGE AGREEMENT
THIS ASSET EXCHANGE AGREEMENT (this "Agreement") is made as of March 5,
2000, among the company or companies designated as Clear Channel on the
signature page hereto (collectively, "Clear Channel") and the company or
companies designated as Exchange Party on the signature page hereto
(collectively, "Exchange Party").
Recitals
A. Clear Channel owns and operates the following radio broadcast stations
(collectively, the "Clear Channel Stations") pursuant to certain authorizations
issued by the Federal Communications Commission (the "FCC"):
WNCE-FM, Palmyra, Pennsylvania
WNNK-FM, Harrisburg, Pennsylvania
WTCY(AM), Harrisburg, Pennsylvania
WTPA(FM), Mechanicsburg, Pennsylvania
KMJJ-FM, Shreveport, Louisiana
KRMD(AM), Shreveport, Louisiana
KRMD-FM, Shreveport, Louisiana
B. Exchange Party owns and operates the following radio broadcast stations
(collectively, the "Exchange Party Stations") pursuant to certain authorizations
issued by the FCC:
WUSY(FM), Cleveland, Tennessee
WLOV-FM, South Pittsburg, Tennessee
WKXJ(FM), Signal Mountain, Tennessee
WKXJ-FM1, Chattanooga, Tennessee
WRXR-FM (formerly WLMX-FM), Rossville, Georgia
WUUS(AM) (formerly WLMX), Rossville, ▇▇▇▇▇▇▇
▇. Subject to the terms and conditions set forth herein, the parties desire
to exchange the Clear Channel Station Assets (defined below) and the Exchange
Party Station Assets (defined below). The parties intend the transaction
contemplated by this Agreement to be a like-kind exchange in accordance with the
provisions of Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code").
D. Clear Channel Communications, Inc. (Clear Channel's parent), CCU Merger
Sub, Inc. and AMFM Inc. are parties to an Agreement and Plan of Merger dated
October 2, 1999 (the "AMFM Agreement").
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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");
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(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 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); and
(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").
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;
(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;
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(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, real and personal, tangible and intangible,
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 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
Exchange Party Stations and listed on Schedule 1.3(b), except any retirements or
dispositions thereof made between the date hereof and Closing in the ordinary
course of business and consistent with past practices of Exchange Party (the
"Exchange Party Tangible Personal Property");
(c) all Exchange Party Time Sales Agreements and Exchange Party Trade
Agreements (both defined in Section 2.1), Exchange Party Real Property Leases
(defined in Section 7.7), and other contracts, agreements, and leases which are
used in the operation of the Exchange Party Stations and listed on Schedule
1.3(c), together with all contracts, agreements, and leases made between the
date hereof and Closing in the ordinary course of business that are used in the
operation of the Exchange Party Stations (the "Exchange Party Station
Contracts");
(d) 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(d) (the
"Exchange Party Intangible Property");
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(e) 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); and
(f) any real property which is used exclusively in the operation of the
Exchange Party Stations (including any of Exchange Party's appurtenant easements
and improvements located thereon) and described on Schedule 1.3(f) (the
"Exchange Party Real Property").
The Exchange Party Station Assets shall be transferred to Clear Channel
free and clear of Liens except for (i) Clear Channel Assumed Obligations
(defined below), (ii) liens for taxes not yet due and payable and for which
Clear Channel receives a credit pursuant to Section 3.3, (iii) such liens,
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 Exchange Party Stations, and (iv) any
items listed on Schedule 1.3(b) (collectively, "Exchange Party Permitted
Liens").
1.4. Exchange Party Excluded Assets. Notwithstanding anything to the
contrary contained herein, the Exchange Party Station Assets shall not include
the following assets along with all rights, title and interest therein (the
"Exchange Party Excluded Assets"):
(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;
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(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; and
(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.
1.5. Lease Agreements. At Closing, Clear Channel and the Exchange Party
shall enter into the lease agreements described on Schedule 1.2(h) pursuant to
leases in the form of Exhibit A attached hereto (for each tower space lease),
Exhibit B-1 attached hereto (for any single tenant studio lease) and Exhibit B-2
attached hereto (for any multi-tenant studio lease).
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
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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").
ARTICLE 3: CASH PAYMENT
3.1. Cash Payment. The parties agree that the aggregate value of the Clear
Channel Station Assets exceeds the aggregate value of the Exchange Party Station
Assets by an amount equal to One Hundred Five Million Five Hundred Thousand
Dollars ($105,500,000) (the "Cash Amount"). Exchange Party shall at Closing
(defined below) deliver to Clear Channel by wire transfer of immediately
available funds the Cash Amount, subject to adjustment pursuant to Sections 3.3
(the "Cash Payment").
3.2. Deposit. Within three (3) business days of the date of this Agreement
(with no Cure Period (defined below)), Exchange Party shall deposit an amount
equal to 10% of the Cash Amount (the "Deposit") with Bank of America (the
"Escrow Agent") pursuant to the Escrow Agreement (the "Escrow Agreement") of
even date herewith among Clear Channel, Exchange Party and the Escrow Agent. At
Closing, the Deposit shall be applied to the Cash Payment and any interest
accrued thereon shall be disbursed to Exchange Party (if in cash) or returned to
Exchange Party (if a letter of credit). If this Agreement is terminated by Clear
Channel due to Exchange Party's failure to consummate the Closing on the Closing
Date in accordance with this Agreement or if this Agreement is otherwise
terminated by Clear Channel pursuant to Section 16.1(b), the Deposit and any
interest accrued thereon shall be disbursed to Clear Channel as partial payment
of liquidated damages pursuant to Section 16.3. If this Agreement is terminated
for any other reason, the Deposit and any interest accrued thereon shall be
disbursed to Exchange Party. Exchange Party may make the Deposit by delivering
to the Escrow Agent (as beneficiary) a letter of credit (the "L/C") issued by
Bank of Nova Scotia (the "Issuing Bank") in the stated amount of 10% of the
Purchase Price, without draw conditions and with an expiry date of not less than
6 months (and otherwise in a form reasonably satisfactory to Seller). If the
Deposit is to be disbursed to Clear Channel as provided in this Agreement, then
the Escrow Agent shall present the L/C to the Issuing Bank and draw the entire
stated amount and such proceeds shall be disbursed to Clear Channel. If the L/C
is not extended prior to the date one month before its expiry date, then the
Escrow Agent shall present the L/C to the Issuing Bank and draw the entire
stated amount and such proceeds shall be held by the Escrow Agent as a cash
deposit.
3.3. Prorations and Adjustments. Except as otherwise provided herein, all
deposits, reserves and prepaid and deferred income and expenses arising from the
conduct of the business and operations of the Clear Channel Stations and
Exchange Party Stations shall be prorated in accordance with generally accepted
accounting principles as of 11:59 p.m. on the date immediately preceding the
Closing Date. Such prorations shall include, without limitation, all ad valorem,
real estate and other property taxes (but excluding transfer taxes which shall
be paid as set forth in Section 13.1), business and license fees, music and
other license fees (including any
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retroactive adjustments thereof), utility expenses, amounts due or to become due
under contracts, rents, lease payments and similar prepaid and deferred items.
Real estate taxes shall be apportioned on the basis of taxes assessed for the
preceding year, with a reapportionment, if any, as soon as the new tax rate and
valuation can be ascertained. Except as otherwise provided herein, the
prorations and adjustments contemplated by this Section 3.3, to the extent
practicable, shall be made on the Closing Date. As to those prorations and
adjustments not capable of being ascertained on the Closing Date, an adjustment
and proration shall be made within ninety (90) calendar days of the Closing
Date. In the event of any disputes between the parties as to such adjustments,
the amounts not in dispute shall nonetheless be paid at the time provided herein
and such disputes shall be determined by an independent certified public
accountant mutually acceptable to the parties, and the fees and expenses of such
accountant shall be paid one-half by Clear Channel and one-half by Exchange
Party.
3.4. Allocation.
(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 & ▇▇▇▇▇▇ (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 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 groups and (ii) set forth the
total value of the assets making up each such exchange group and residual group
(based upon the Appraisal). For tax purposes, the parties shall report the
exchange of assets under this Agreement consistently with the Exchange Group
Schedules and the Appraisal, including without limitation filing when due IRS
Form 8594 and (if applicable) IRS Form 8824 on the basis of the Exchange Group
Schedules and the Appraisal.
ARTICLE 4: CLOSING
4.1. Closing. The consummation of the exchange of assets under this
Agreement (the "Closing") shall occur on a date (the "Closing Date") and at a
time and place designated solely by Clear Channel after FCC Consent (defined
below), 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.
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ARTICLE 5: GOVERNMENTAL CONSENTS
Closing is subject to and conditioned upon (i) prior FCC consent (the "FCC
Consent") to the assignment of the Clear Channel FCC Licenses to Exchange Party
and the Exchange Party FCC Licenses to Clear Channel, (ii) United States
Department of Justice ("DOJ") prior approval (the "DOJ Consent") of the
transactions contemplated hereby, including without limitation any such approval
as may be necessary to enable Clear Channel to consummate the merger under the
AMFM Agreement, and (iii) expiration or termination of any applicable waiting
period ("HSR Clearance") under the HSR Act (defined below).
5.1. FCC. On a date designated by Clear Channel, Clear Channel and Exchange
Party shall file applications with the FCC (the "FCC Application") requesting
the FCC Consent. Clear Channel and Exchange Party shall diligently prosecute the
FCC Application and otherwise use their best efforts to obtain the FCC Consent
as soon as possible. If the FCC Consent imposes upon Exchange Party any
condition (including without limitation in any divestiture condition), Exchange
Party shall timely comply therewith.
5.2. HSR. If not previously filed, then within five (5) business days after
the execution of this Agreement, Clear Channel and Exchange Party shall make any
required filings with the Federal Trade Commission and the DOJ pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act")
with respect to the transactions contemplated hereby (including a request for
early termination of the waiting period thereunder), and shall thereafter
promptly respond to all requests received from such agencies for additional
information or documentation.
5.3. General. Clear Channel and Exchange Party shall notify each other of
all documents filed with or received from any governmental agency with respect
to this Agreement or the transactions contemplated hereby. Clear Channel and
Exchange Party shall furnish each other with such information and assistance as
such the other may reasonably request in connection with their preparation of
any governmental filing hereunder. If Exchange Party becomes aware of any fact
relating to it which would prevent or delay the FCC Consent, the DOJ Consent or
HSR Clearance, Exchange Party shall promptly notify Clear Channel thereof and
take such steps as necessary to remove such impediment, including but not
limited to divesting any stations and terminating any agreements to acquire or
program or market any stations.
ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF CLEAR CHANNEL
Clear Channel makes the following representations and warranties to Exchange
Party:
6.1. Organization. Clear Channel is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, and is
qualified to do business in 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
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consummate the transactions contemplated hereby and thereby and to comply with
the terms, conditions and provisions hereof and thereof.
6.2. Authorization. The execution, delivery and performance of this
Agreement and the Clear Channel Ancillary Agreements by Clear Channel have been
duly authorized and approved by all necessary action of Clear Channel and do not
require any further authorization or consent of Clear Channel. This Agreement
is, and each Clear Channel Ancillary Agreement when executed and delivered by
Clear Channel and the other parties thereto will be, a legal, valid and binding
agreement of Clear Channel enforceable in accordance with its respective terms,
except in each case as such enforceability may be limited by bankruptcy,
moratorium, insolvency, reorganization or other similar laws affecting or
limiting the enforcement of creditors' rights generally and except as such
enforceability is subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
6.3. No Conflicts. Neither the execution and delivery by Clear Channel of
this Agreement and the Clear Channel Ancillary Agreements or the consummation by
Clear Channel of any of the transactions contemplated hereby or thereby nor
compliance by Clear Channel with or fulfillment by Clear Channel of the terms,
conditions and provisions hereof or thereof will: (i) conflict with any
organizational documents of Clear Channel or any law, judgment, order, or decree
to which Clear Channel is subject or, except as set forth on Schedule 1.1(c),
any Clear Channel Station Contract; or (ii) require the approval, consent,
authorization or act of, or the making by Clear Channel of any declaration,
filing or registration with, any third party or any foreign, federal, state or
local court, governmental or regulatory authority or body, except the FCC
Consent and DOJ Consent, and, if applicable, HSR Clearance.
6.4. FCC Licenses. Clear Channel (or one of the companies comprising Clear
Channel) is the holder of the Clear Channel FCC Licenses described on Schedule
1.1(a). 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.
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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.
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
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pending or threatened against Clear Channel in respect of the Clear Channel
Stations that will subject Exchange Party to liability or which questions the
legality or propriety of the transactions contemplated by this Agreement. To
Clear Channel's knowledge, there are no governmental claims or investigations
pending or threatened against Clear Channel in respect of the Clear Channel
Stations (except those affecting the industry generally).
6.12. No Finder. No broker, finder or other person is entitled to a
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Clear Channel or any party acting on Clear Channel's behalf.
6.13. Qualification. Clear Channel is legally, financially and otherwise
qualified to be the licensee of, acquire, own and operate the Exchange Party
Stations under the Communications Act and the rules, regulations and policies of
the FCC. There are no facts that would, under existing law and the existing
rules, regulations, policies and procedures of the FCC, disqualify Clear Channel
as an assignee of the Exchange Party FCC Licenses or as the owner and operator
of the Exchange Party Stations. No request by Clear Channel for waiver of any
FCC rule or policy is necessary for the FCC Consent to be obtained. There is no
action, suit or proceeding pending or threatened against Clear Channel which
could materially adversely affect Clear Channel's ability to perform its
obligations hereunder.
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 DOJ Consent and, if applicable, HSR Clearance.
7.4. FCC Licenses. Exchange Party is 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. Personal Property. Schedule 1.3(b) contains a list of all material
items of Exchange Party Tangible Personal Property included in the Exchange
Party Station Assets. Exchange Party has title to the Exchange Party Tangible
Personal Property free and clear of Liens other than Exchange Party Permitted
Liens.
7.7. Real Property. Schedule 1.3(f) contains a description of all Exchange
Party Real Property included in the Exchange Party Station Assets. Exchange
Party has fee simple title to the owned Exchange Party Real Property ("Exchange
Party Owned Real Property") free and clear of Liens other than Exchange Party
Permitted Liens. Schedule 1.3(f) includes a description of each real property
lease or similar agreement included in the Exchange Party Station Assets (the
"Exchange Party Real Property Leases"). The Exchange Party Owned Real Property
includes, and the Exchange Party Real Property Leases provide, access to the
Exchange Party Stations' facilities. To Exchange Party's knowledge, the Exchange
Party Real Property is not subject to any suit for condemnation or other taking
by any public authority.
7.8. 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
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Exchange Party and, to Exchange Party's knowledge, the other parties thereto
(subject to bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally).
Exchange Party has performed its obligations under each of the Exchange Party
Station Contracts in all material respects, and is not in material default
thereunder, and to Exchange Party's knowledge, no other party to any of the
Exchange Party Station Contracts is in default thereunder in any material
respect.
7.9. Environmental. Except as set forth in any environmental report
delivered by Exchange Party to Clear Channel prior to the date of this Agreement
and except as set forth on Schedule 1.3(f), to Exchange Party's knowledge, no
hazardous or toxic substance or waste regulated under any applicable
environmental, health or safety law has been generated, stored, transported or
released on, in, from or to the Exchange Party Real Property included in the
Exchange Party Station Assets. Except as set forth in any environmental report
delivered by Exchange Party to Clear Channel prior to the date of this Agreement
and except as set forth on Schedule 1.3(f), to Exchange Party's knowledge,
Exchange Party has complied in all material respects with all environmental,
health and safety laws applicable to the Exchange Party Stations.
7.10. Intangible Property. Schedule 1.3(d) contains a description of the
material Exchange Party Intangible Property included in the Exchange Party
Station Assets. Except as set forth on Schedule 1.3(d), Exchange Party has
received no notice of any claim that its use of the Exchange Party Intangible
Property infringes upon any third party rights. . Except as set forth on
Schedule 1.3(d), Exchange Party owns or has the right to use the Exchange Party
Intangible Property free and clear of Liens other than Exchange Party Permitted
Liens.
7.11. Compliance with Law. Exchange Party has complied in all material
respects with all laws, regulations, rules, writs, injunctions, ordinances,
franchises, decrees or orders of any court or of any foreign, federal, state,
municipal or other governmental authority which are applicable to the operation
of the Exchange Party Stations. There is no action, suit or proceeding pending
or threatened against Exchange Party in respect of the Exchange Party Stations
that will subject Clear Channel to liability or which questions the legality or
propriety of the transactions contemplated by this Agreement. To Exchange Party
`s knowledge, there are no governmental claims or investigations pending or
threatened against Exchange Party in respect of the Exchange Party Stations
(except those affecting the industry generally).
7.12. No Finder. No broker, finder or other person is entitled to a
commission, brokerage fee or other similar payment in connection with this
Agreement or the transactions contemplated hereby as a result of any agreement
or action of Exchange Party or any party acting on Exchange Party `s behalf.
7.13. 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
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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.
ARTICLE 8: ACCOUNTS RECEIVABLE
8.1. Clear Channel Accounts Receivable. All accounts receivable arising
prior to the Closing Date in connection with the operation of the Clear Channel
Stations, including but not limited to accounts receivable for advertising
revenues for programs and announcements performed prior to the Closing Date and
other broadcast revenues for services performed prior to the Closing Date, shall
remain the property of Clear Channel (the "Clear Channel Accounts Receivable")
and Exchange Party shall not acquire any right or interest therein. For a period
of six months from Closing (the "Collection Period"), Exchange Party shall
collect the Clear Channel Accounts Receivable in the normal and ordinary course
of Exchange Party's business and shall apply all such amounts collected to the
debtor's oldest account receivable first. Exchange Party's obligation shall not
extend to the institution of litigation, employment of counsel or a collection
agency or any other extraordinary means of collection. During the Collection
Period, neither Clear Channel 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
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Receivable during the preceding month. At the end of the Collection Period, any
remaining Exchange Party Accounts Receivable shall be returned to Exchange Party
for collection.
ARTICLE 9: COVENANTS
9.1. Clear Channel's Covenants. Clear Channel covenants and agrees with
respect to the Clear Channel Stations that, between the date hereof and Closing,
except as permitted by this Agreement or with the prior written consent of
Exchange Party, which shall not be unreasonably withheld, Clear Channel shall:
(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 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 unreasonably with the
business of the Exchange Party Stations.
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ARTICLE 10: JOINT COVENANTS
Clear Channel and Exchange Party hereby covenant and agree that between the
date hereof and Closing:
10.1. Cooperation. Subject to express limitations contained elsewhere
herein, each party (i) shall cooperate fully with one another in taking any
reasonable actions (including without limitation, reasonable actions to obtain
the required consent of any governmental instrumentality or any third party)
necessary or helpful to accomplish the transactions contemplated by this
Agreement, including but not limited to the prompt satisfaction of any condition
to Closing set forth herein, and (ii) shall not take any action that conflicts
with its obligations hereunder or that causes its representations and warranties
to become untrue in any material respect.
10.2. Control of Stations. Neither party shall, directly or indirectly,
control, supervise or direct the operations of the other party's stations prior
to Closing. Such operations, including complete control and supervision of all
programs, employees and policies, shall be the sole responsibility of the FCC
licensee thereof.
10.3. Consents to Assignment. The parties shall use commercially reasonable
efforts to obtain any third party consents necessary for the assignment of any
Clear Channel Station Contract or Exchange Party Station Contract (which shall
not require any payment to any such third party). To the extent that any such
contract may not be assigned without the consent of any third party, and such
consent is not obtained prior to Closing, this Agreement and any assignment
executed pursuant hereto shall not constitute an assignment thereof, but to the
extent permitted by law shall constitute an equitable assignment and assumption
of rights and obligations thereunder, with the conveying party making available
to the acquiring party the benefits thereof and the acquiring party performing
the obligations thereunder on the conveying party's behalf.
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 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
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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 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, Clear
Channel shall promptly give written notice thereof to Exchange Party and
Exchange Party shall cooperate with the reasonable requests of Clear Channel and
any Qualified Intermediary in connection therewith. Without limiting the
generality of the foregoing, if Clear Channel gives notice of such agreement,
Exchange Party shall (i) promptly provide Clear Channel with written
acknowledgment of such notice and (ii) at Closing, convey all or part of the
Exchange Party Station Assets and make all or part of the Cash Payment (each as
designated in writing by the Qualified Intermediary) to or on behalf of the
Qualified Intermediary (which payment and conveyance shall, to the extent
thereof, satisfy the obligation of Exchange Party to make such conveyance and
payment hereunder). Clear Channel's assignment to a Qualified Intermediary will
not relieve Clear Channel of any of its duties or obligations herein. Except for
the obligations of Exchange Party set forth in this Section, Exchange Party
shall not have any liability or obligation to Clear Channel for the failure of
such other exchange to qualify as a like kind exchange under Section 1031 of the
Code unless such failure is the result of the material breach or default by
Exchange Party under this Agreement.
10.6. Trust. Notwithstanding anything in this Agreement to the contrary,
Clear Channel may at it option assign this Agreement (in whole or part) and
assign and transfer the Clear Channel Station Assets (in whole or in part) to a
trustee to hold and operate pursuant to a trust
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agreement, provided such trustee assumes Clear Channel's duties and obligations
hereunder with respect to the Clear Channel Station Assets held in such trust.
ARTICLE 11: CONDITIONS OF CLOSING BY CLEAR CHANNEL
The obligations of Clear Channel hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
11.1. Representations, Warranties and Covenants. The representations and
warranties of Exchange Party made in this Agreement shall be true and correct in
all material respects as of the Closing Date except for changes permitted or
contemplated by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Exchange Party at or prior to Closing shall
have been complied with or performed in all material respects. Clear Channel
shall have received a certificate dated as of the Closing Date from Exchange
Party, executed by an authorized officer of Exchange Party to the effect that
the conditions set forth in this Section have been satisfied.
11.2. Governmental Consents. The FCC Consent and DOJ Consent, and, if
applicable, HSR Clearance, shall have been obtained, and no court or
governmental order prohibiting Closing shall be in effect.
11.3. AMFM Closing. The closing under the AMFM Agreement shall have been
consummated.
ARTICLE 12: CONDITIONS OF CLOSING BY EXCHANGE PARTY
The obligations of Exchange Party hereunder are, at its option, subject to
satisfaction, at or prior to Closing, of each of the following conditions:
12.1. Representations, Warranties and Covenants. The representations and
warranties of Clear Channel made in this Agreement shall be true and correct in
all material respects as of the Closing Date except for changes permitted or
contemplated by the terms of this Agreement, and the covenants and agreements to
be complied with and performed by Clear Channel at or prior to Closing shall
have been complied with or performed in all material respects. Exchange Party
shall have received a certificate dated as of the Closing Date from Clear
Channel, executed by an authorized officer of Clear Channel, to the effect that
the conditions set forth in this Section have been satisfied.
12.2. Governmental Consents. The FCC Consent and DOJ Consent, and, if
applicable, HSR Clearance, shall have been obtained, and no court or
governmental order prohibiting Closing shall be in effect.
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ARTICLE 13: EXPENSES
13.1. Expenses. Each party shall be solely responsible for all costs and
expenses incurred by it in connection with the negotiation, preparation and
performance of and compliance with the terms of this Agreement, except that (i)
all recordation, transfer and documentary taxes, fees and charges, and any
excise, sales or use taxes, applicable to the transfer of the Clear Channel
Station Assets and Exchange Party Station Assets shall be paid by 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 by
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.
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, special warranty deeds,
documents of title and other instruments of conveyance, assignment and transfer
as may be necessary to convey, transfer and assign the Exchange Party Station
Assets to Clear Channel, free and clear of Liens, except for Exchange Party
Permitted Liens;
(iv) such documents and instruments of assumption as may be necessary
to assume the Clear Channel Assumed Obligations; and
(v) the Cash Payment in accordance with Section 3.1 hereof.
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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), 3.3 (Adjustments), 3.4 (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), (i) Clear Channel shall have no liability to
Exchange Party hereunder until, and only to the extent that, Exchange Party's
aggregate Damages exceed $500,000 and (ii) 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) and the Cash Payment, (i) Exchange Party shall have no liability to
Clear Channel hereunder until, and only to the extent that, Clear Channel's
aggregate Damages exceed $500,000 and (ii) 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:
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(a) The indemnifying party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense or opposition
to such Claim.
(b) In the event that the indemnifying party shall elect not to
undertake such defense or opposition, or, within twenty (20) days after written
notice (which shall include sufficient description of background information
explaining the basis for such Claim) of any such Claim from the indemnified
party, the indemnifying party shall fail to undertake to defend or oppose, the
indemnified party (upon further written notice to the indemnifying party) shall
have the right to undertake the defense, opposition, compromise or settlement of
such Claim, by counsel or other representatives of its own choosing, on behalf
of and for the account and risk of the indemnifying party (subject to the right
of the indemnifying party to assume defense of or opposition to such Claim at
any time prior to settlement, compromise or final determination thereof).
(c) Anything herein to the contrary notwithstanding: (i) the
indemnified party shall have the right, at its own cost and expense, to
participate in the defense, opposition, compromise or settlement of the Claim;
(ii) the indemnifying party shall not, without the indemnified party's written
consent, settle or compromise any Claim or consent to entry of any judgment
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the indemnified party of a release from all
liability in respect of such Claim; and (iii) in the event that the indemnifying
party undertakes defense of or opposition to any Claim, the indemnified party,
by counsel or other representative of its own choosing and at its sole cost and
expense, shall have the right to consult with the indemnifying party and its
counsel or other representatives concerning such Claim and the indemnifying
party and the indemnified party and their respective counsel or other
representatives shall cooperate in good faith with respect to such Claim.
(d) All claims not disputed shall be paid by the indemnifying party
within thirty (30) days after receiving notice of the Claim. "Disputed Claims"
shall mean claims for Damages by an indemnified party which the indemnifying
party objects to in writing within thirty (30) days after receiving notice of
the Claim. In the event there is a Disputed Claim with respect to any Damages,
the indemnifying party shall be required to pay the indemnified party the amount
of such Damages for which the indemnifying party has, pursuant to a final
determination, been found liable within ten (10) days after there is a final
determination with respect to such Disputed Claim. A final determination of a
Disputed Claim shall be (i) a judgment of any court determining the validity of
a Disputed Claim, if no appeal is pending from such judgment and if the time to
appeal therefrom has elapsed; (ii) an award of any arbitration determining the
validity of such disputed claim, if there is not pending any motion to set aside
such award and if the time within which to move to set aside such award has
elapsed; (iii) a written termination of the dispute with respect to such claim
signed by the parties thereto or their attorneys; (iv) a written acknowledgment
of the indemnifying party that it no longer disputes the validity of such claim;
or (v) such other evidence 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
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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 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;
(e) by written notice of Clear Channel to Exchange Party if the Closing
shall not have been consummated on or before the date four months after the date
of this Agreement; or
(f) by written notice of Clear Channel to Exchange Party if the AMFM
Agreement is terminated or expires.
The term "Cure Period" as used herein means a period commencing the date a
party receives from the other written notice of breach or default hereunder and
continuing until the earlier of (i) thirty (30) days thereafter or (ii) the
Closing Date; provided, however, that if the breach or default cannot reasonably
be cured within such period but can be cured before the Closing Date, and if
diligent efforts to cure promptly commence, then the Cure Period shall continue
as long as such diligent efforts to cure continue, but not beyond the Closing
Date. Except as set forth below, the termination of this Agreement shall not
relieve any party of any liability for breach or default under this Agreement
prior to the date of termination. 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
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defaults such that the Closing has not occurred ("Breaching Party"), monetary
damages alone will not be adequate to compensate the non-breaching party
("Non-Breaching Party") for its injury. Such Non-Breaching Party shall therefore
be entitled to obtain specific performance of the terms of this Agreement in
lieu of, and not in addition to, any other remedies, including but not limited
to monetary damages, that may be available to it; provided however, that Clear
Channel may elect to recover liquidated damages in lieu of obtaining specific
performance. If any action is brought by the Non-Breaching Party to enforce this
Agreement, the Breaching Party shall waive the defense that there is an adequate
remedy at law. In the event of a default by the Breaching Party which results in
the filing of a lawsuit for damages, specific performance, or other remedy, the
Non-Breaching Party shall be entitled to reimbursement by the Breaching Party of
reasonable legal fees and expenses incurred by the Non-Breaching Party, provided
that the Non-Breaching Party is successful in such lawsuit.
16.3. Liquidated Damages. If this Agreement is terminated by Clear Channel
due to Exchange Party's failure to consummate the Closing on the Closing Date in
accordance with this Agreement or if this Agreement is otherwise terminated by
Clear Channel pursuant to Section 16.1(b), then Exchange Part shall pay Clear
Channel as liquidated damages an amount equal to 25% of the Cash Amount. It is
understood and agreed that such liquidated damages amount represents the
parties' reasonable estimate of actual damages and does not constitute a
penalty.
ARTICLE 17: MISCELLANEOUS PROVISIONS
17.1. Casualty Loss. In the event any loss or damage of the Clear Channel
Tangible Personal Property or Clear Channel Real Property or the Exchange Party
Tangible Personal Property or Exchange Party Real Property exists on the Closing
Date, the parties shall consummate the Closing and assign as appropriate the
proceeds of any insurance payable on account of such damage or loss.
17.2. Further Assurances. After the Closing, each party shall from time to
time, at the request of and without further cost or expense to the other,
execute and deliver such other instruments and take such other actions as may
reasonably be requested in order to more effectively consummate the transactions
contemplated hereby to exchange assets and assume obligations as contemplated by
this Agreement.
17.3. Assignment. Except as set forth in Sections 10.5 (1031 Exchange) and
10.6 (Trust), neither party may assign this Agreement without the prior written
consent of the other party hereto. 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.
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17.4. Amendments. No amendment, waiver of compliance with any provision or
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment, change, extension or discharge is sought.
17.5. Headings. The headings set forth in this Agreement are for convenience
only and will not control or affect the meaning or construction of the
provisions of this Agreement.
17.6. Governing Law. The construction and performance of this Agreement
shall be governed by the laws of the State of Texas without giving effect to the
choice of law provisions thereof.
17.7. Notices. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing, including by
facsimile, and shall be deemed to have been received on the date of personal
delivery, on the third day after deposit in the U.S. mail if mailed by
registered or certified mail, postage prepaid and return receipt requested, on
the day after delivery to a nationally recognized overnight courier service if
sent by an overnight delivery service for next morning delivery or when
delivered by facsimile transmission, and shall be addressed as follows (or to
such other address as any party may request by written notice):
if to Clear Channel: c/o Clear Channel Broadcasting, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall
not constitute notice) to: Wiley, Rein & Fielding
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to Exchange Party: Cumulus Broadcasting, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall
not constitute notice) to: Cumulus Broadcasting, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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17.8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
17.9. No Third Party Beneficiaries. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person or entity
other than the parties hereto and their successors or permitted assigns, any
rights or remedies under or by reason of this Agreement.
17.10. Severability. The parties agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
17.11. Entire Agreement. This Agreement embodies the entire agreement and
understanding of the parties hereto and supersedes any and all prior agreements,
arrangements and understandings relating to the matters provided for herein.
This Agreement does not supersede any confidentiality agreement relating to the
Clear Channel Stations.
17.12. 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 five business days after the date hereof. If the schedules
delivered by Exchange Party are not satisfactory to Clear Channel, then Clear
Channel may terminate this Agreement by written notice to Exchange Party.
[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:
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Chairman
CUMULUS LICENSING CORP.
By:
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Chairman
28
Clear Channel Schedules
1.1(a) - FCC Licenses
1.1(b) - Tangible Personal Property
1.1(c) - Station Contracts
1.1(d) - Intangible Property
1.1(f) - Real Property
1.2(h) - Excluded Assets
Exchange Party Schedules
1.3(a) - FCC Licenses
1.3(b) - Tangible Personal Property
1.3(c) - Station Contracts
1.3(d) - Intangible Property
1.3(f) - Real Property
1.4(h) - Excluded Assets
Exhibits
A - Tower Lease Form
B-1 - Studio Lease Form (Single Tenant)
B-2 - Studio Lease Form (Multi-Tenant)