1
EXHIBIT 2.50
STOCK PURCHASE AGREEMENT
BY AND AMONG
ML MEDIA PARTNERS L.P.,
WINCOM BROADCASTING CORPORATION,
WIN COMMUNICATIONS, INC.,
AND
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
AS OF AUGUST 11, 1998
2
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
TERMS OF THE TRANSACTION . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Sale Of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2
GOVERNMENTAL CONSENTS . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Fcc Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Fcc Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANIES . . . . . . . . . . . . . 5
3.1 Representations And Warranties Of Seller And The Companies . . . . . . . . . . . . . . . . . . . . 5
3.1.1 Title To Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1.4 Organization, Good Standing, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1.5 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1.6 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1.7 Absence Of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1.8 Compliance With Applicable Laws, Fcc Matters . . . . . . . . . . . . . . . . . . . . . . 8
3.1.9 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.10 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.1.11 Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1.12 Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1.13 Liens And Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1.14 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.1.15 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.1.16 Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1.17 Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1.18 Erisa Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.1.19 Labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3.1.20 Patents, Trademarks, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3
3.1.21 Absence Of Certain Changes Or Events . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1.22 Commission Or Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1.23 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1.24 The Companies' Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.1.25 Books And Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . 23
4.1 Representations And Warranties Of Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.1 Organization And Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.2 Authorization And Binding Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.3 Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1.4 Absence Of Conflicting Agreements Or Required Consents . . . . . . . . . . . . . . . . . 23
4.1.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.1.6 Commission Or Finder's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4.1.7 Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 5
COVENANTS OF SELLER AND THE COMPANIES . . . . . . . . . . . . . . . . . . 25
5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1.1 Conduct Prior To The Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.1.2 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.1.3 Satisfaction Of Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1.4 Sale Of Acquired Assets; Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.1.5 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.6 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.7 Fcc Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.8 Updating Of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.9 Response To Certain Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.1.10 Barter And Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.11 Interim Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.12 Estoppel Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.13 Termination Of Rp Radio Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.1.14 1997 Audited Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 6
COVENANTS OF BUYER . . . . . . . . . . . . . . . . . . . . . . . 31
6.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.1 Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.2 No Inconsistent Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ii
4
6.1.3 Post-closing Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.1.4 Satisfaction Of Conditions; Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 7
JOINT COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . 32
7.1 Fcc Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.4 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.6 Condition Of Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
7.7 Employee Benefits Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE 8
CONDITIONS OF CLOSING BY BUYER . . . . . . . . . . . . . . . . . . . . 36
8.1 Representations, Warranties And Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.2 Compliance With Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.3 Third Party Consents And Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.4 Closing Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.5 Governmental Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.6 Adverse Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.7 The Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.8 Indemnification And Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.9 Release Of Encumbrances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.10 Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.11 ▇▇▇▇▇▇▇ Money Letter Of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.12 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.13 Resignation Of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.14 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.15 1445 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.16 Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.17 Rp Radio Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
8.18 Management Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE 9
CONDITIONS OF CLOSING BY SELLER . . . . . . . . . . . . . . . . . . . . 39
9.1 Representations, Warranties And Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.2 Compliance With Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.3 Certifications, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.4 Governmental Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
iii
5
9.5 Adverse Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
9.6 Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
9.7 Indemnification And Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 10
TRANSFER TAXES; FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . 40
10.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.2 Sales And Transfer Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.3 Governmental Filing Or Grant Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 11
LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE, LETTER OF CREDIT . . . . . . . . . . . . . 40
11.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11.2 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
11.3 Letter Of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 12
TERMINATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 42
12.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 13
RISK OF LOSS . . . . . . . . . . . . . . . . . . . . . . . . . 43
13.1 Risk Of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE 14
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 45
14.1 Survival Of Representations And Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
14.2 Certain Interpretive Matters And Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
14.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
14.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
14.5 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
14.6 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
14.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
14.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
14.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
14.10 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
14.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
14.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
14.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
14.14 No Third-party Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
iv
6
SCHEDULES
Schedule 2.1 Licenses
Schedule 3.1.1 Shares
Schedule 3.1.2 Subsidiaries
Schedule 3.1.3 Capital Stock
Schedule 3.1.6 Financial Statements
Schedule 3.1.8 Noncompliance With The Communications Act And The Fcc
Schedule 3.1.9 Litigation
Schedule 3.1.10 Insurance
Schedule 3.1.11 Real Estate
Schedule 3.1.12 Personal Property
Schedule 3.1.13 Permitted Liens
Schedule 3.1.14 Environmental Matters
Schedule 3.1.15 Taxes
Schedule 3.1.16 Personnel
Schedule 3.1.17 Contracts
Schedule 3.1.18 Erisa Matters
Schedule 3.1.19 Labor Matters
Schedule 3.1.20 Intellectual Property
Schedule 3.1.21 Absence Of Certain Changes Of Events
Schedule 3.1.26 Accounts Receivable
Schedule 3.1.28 Interest In Competitors, Suppliers And Customers
Schedule 3.1.30 Barter Arrangements
Schedule 4.1.4 Consents
Schedule 5.1.7 Fcc Reports
Schedule 6.1.5 Certain Actions
EXHIBITS
Exhibit A Indemnification And Escrow Agreement
Exhibit ▇-▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇-▇ Opinion Of Wiley, Rein & Fielding
Exhibit C Opinion Of Weil, Gotshal & ▇▇▇▇▇▇ Llp
Exhibit D Earnest Money Escrow Agreement
v
7
DEFINED TERMS
Defined Terms Section
------------- -------
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 14.2
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Buyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Buyer's 401(k) Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.7(A)
Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.4
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.4
Cobra Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.7(B)
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.15
Communications Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.8
Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Companies' Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.6
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.17
Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 8.16
▇▇▇▇▇▇▇ Money Escrow Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.3
▇▇▇▇▇▇▇ Money Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.3
▇▇▇▇▇▇▇ Money Letter Of Credit . . . . . . . . . . . . . . . . . . . . . . . . . Section 11.3
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3
Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.18
Environmental Costs And Liabilities . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
Erisa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.18
Erisa Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.18
Estimate Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.3
Excepted Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 14.1
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 14.4
Fcc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.1
Fcc Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.2
Fcc Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.1
Final Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.4
Final Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.4
Ftc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.5
Gaap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.6
Governmental Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.5
Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
Hsr Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.5
Indemnification Escrow Agreement . . . . . . . . . . . . . . . . . . . . . . . . Section 1.2
vi
8
Independent Group Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.20
Leased Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.11(C)
Liability Adjustment Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.2
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.13
Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.4
May 1998 Balance Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.7
Objection Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.5
Other Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Owned Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.11(C)
Participant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.7(A)
Permitted Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.13
Predecessor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.14
Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.2
Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.11(C)
Reviewing Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.5
Rp Radio Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 5.1.13
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 4.1.8
Seller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Seller's 401(k) Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.7(A)
Settlement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.31
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Specified Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 13.1
Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Station Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 2.1
Station Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.16
Studies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 7.6
Tax Or Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.15
Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.15
Tba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Trade Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.2
Win-florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.3
Win-indiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.3
Winco . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Winco Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 3.1.3
Wincom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preamble
Working Capital Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section 1.3.1
Zapis Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
Zebra Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recitals
vii
9
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), made as of August
11, 1998, is by and among ML Media Partners L.P., a Delaware limited
partnership ("Seller"), WINCOM Broadcasting Corporation, an Ohio corporation
("WINCOM"), WIN Communications, Inc., an Ohio corporation ("WINCO," and together
with WINCOM, the "Companies"), and Chancellor Media Corporation of Los Angeles,
a Delaware corporation ("Buyer").
WITNESSETH:
WHEREAS, WINCO owns certain assets, which are used in connection with
the operation of radio station WQAL 104.1 FM in Cleveland, Ohio (the
"Station"); and
WHEREAS, Seller owns all of the issued and outstanding shares of
common stock of WINCOM, which constitutes all of the issued and outstanding
equity interests of WINCOM (the "Shares") and WINCOM owns all of the issued and
outstanding equity interests in WINCO;
WHEREAS, concurrently herewith, Buyer and WINCO are entering into a
Time Brokerage Agreement (the "TBA"), pursuant to which, following the
expiration or termination of the applicable waiting period under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), Buyer will purchase substantially all of the broadcast time of the
Station, subject to the rules and policies of the Federal Communications
Commission (the "FCC");
WHEREAS, contemporaneously herewith, Buyer also is entering into (a) a
Stock Purchase Agreement with the other signatories thereto to purchase all of
the stock of Young Ones, Inc. and Zebra Broadcasting Corporation, which
operates radio stations WZJM 92.3 FM and WJMO 1490 AM in Cleveland Heights,
Ohio (the "Zebra Acquisition"), (b) an Asset Purchase Agreement with
Independent Group Limited Partnership to purchase substantially all of the
assets used in connection with the operation of radio stations WDOK 102.1 FM
and WRMR 850 AM in Cleveland, Ohio (the "Independent Group Acquisition") and
(c) an Asset Purchase Agreement with Zapis Communications Inc. to purchase
substantially all of the assets used in connection with the operation of radio
stations WZAK 93.1 FM in Cleveland, Ohio (the "Zapis Acquisition," and together
with the Independent Group Acquisition and the Zebra Acquisition, the "Other
Acquisitions"); and
10
WHEREAS, Seller desires to sell the Shares and Buyer desires to
purchase the Shares in accordance with the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound hereby agree as follows:
ARTICLE 1
TERMS OF THE TRANSACTION
1.1 Sale of Shares. On the terms and subject to the conditions
contained in this Agreement, at the Closing, Seller shall sell and assign to
Buyer, and Buyer shall purchase and acquire from Seller, the Shares.
1.2 Purchase Price. In exchange for the Shares, Buyer shall,
subject to Articles 8 and 9 hereof, at the Closing deliver to Seller the amount
equal to Fifty-One Million Two Hundred Fifty Thousand Dollars ($51,250,000.00),
plus or minus as the case may be, the Working Capital Amount as defined in
Section 1.3.1 hereof, minus the Liability Adjustment Amount as defined in
Section 1.3.2 hereof (as adjusted, the "Purchase Price") by wire transfer of
immediately available funds; provided that a portion of the Purchase Price
equal to $2,500,000 will be paid by Buyer into escrow pursuant to the
Indemnification and Escrow Agreement among Buyer, Seller and Key Trust Company
of Ohio, N.A., as escrow agent in the form attached as Exhibit A hereto (the
"Indemnification and Escrow Agreement").
1.3 Adjustments.
1.3.1 The "Working Capital Amount" means the amount equal
to the Companies' consolidated current assets, net of reserves for bad debt, as
of 12:01 a.m. on the Closing Date (as defined in Section 1.4) (the "Effective
Time"), minus the Companies' consolidated current liabilities as of the
Effective Time, in each case calculated in accordance with GAAP (as hereinafter
defined in Section 3.1.6).
1.3.2 The "Liability Adjustment Amount" means the amount
equal to the total of, without duplication, (a) all of the liabilities and
obligations of the Companies as of the Effective Time required to be reflected
on a balance sheet prepared in accordance with GAAP (as defined in Section
3.1.6), (b) any prepayment penalties and premiums and other penalties, costs
and expenses associated with the prepayment or retirement of any indebtedness
of the Companies, whether or not incurred at Closing, (c) any stay bonuses paid
to employees of the Companies prior to or at the Closing or committed to, prior
to the
2
11
Closing, to be paid by either of the Companies after the Closing, (d) Taxes
relating to any periods ending on or prior to the Closing Date, whether or not
then due and (e) any severance obligations of the Company with respect to
employees terminated prior to or as of the Closing, but, excluding (i) the
liabilities and obligations of the Companies which relate to the operations of
the Companies after the Closing, (ii) any liabilities and obligations reflected
in the Working Capital Amount, (iii) any liabilities and obligations related to
vacation and sick pay of employees who remain with the Companies accrued since
January 1, 1998, (iv) any liabilities and obligations of the Companies paid
prior to or as of the Closing, provided that to the extent that cash of either
of the Companies is used to make such payments, the use of such cash is
reflected in the Working Capital Amount, and (v) all liabilities and
obligations relating to bartered goods and services ("Trade Agreements").
1.3.3 Seller shall prepare and deliver to Buyer, at least
five business days prior to the Closing Date, a statement (the "Estimate
Statement") showing the amount reasonably estimated by Seller, in good faith,
to be (a) the Working Capital Amount, together with reasonable detail as to how
such amount was determined and (b) the Liability Adjustment Amount, together
with reasonable detail as to how such amount was determined. Prior to Closing,
Seller and the Companies shall provide to Buyer copies of or reasonable access
to all books and records as Buyer may reasonably request for purposes of
verifying the estimated Working Capital Amount, the estimated Liability
Adjustment Amount and the calculations set forth on the Estimate Statement.
Seller and Buyer agree to work together in good faith to resolve on or before
the Closing Date any disagreement with respect to any matter set forth in the
Estimate Statement. The Purchase Price paid by Buyer shall be based on the
estimated Working Capital Amount and estimated Liability Adjustment Amount set
forth in the Estimate Statement agreed to by Buyer and shall be adjusted
post-Closing, if necessary pursuant to this Section 1.3.
1.3.4 Buyer will deliver to Seller, within 60 days after
the Closing Date, a schedule which sets forth the actual Working Capital Amount
and the actual Liability Adjustment Amount as of the Effective Time and sets
forth in reasonable detail how such amounts were determined (the "Final
Statement"). Buyer shall provide to Seller copies of or reasonable access to
all books and records of the Companies as Seller may reasonably request for
purposes of verifying the final Working Capital Amount, the final Liability
Adjustment Amount and the calculations set forth in the Final Statement.
1.3.5 If within 30 days after Buyer delivers the Final
Statement to Seller (the "Objection Period"), Seller notifies Buyer of any
objections to the calculation of the amounts set forth in the Final Statement,
Buyer and Seller will attempt in good faith to agree by the date which is 100
days after the Closing Date upon such amounts. If Buyer and Seller
3
12
cannot agree by such date as to the final Working Capital Amount and/or
Liability Adjustment Amount, Buyer and Seller hereby designate Ernst & Young
LLP (the "Reviewing Firm") to review the Final Statement, Seller's objections
and any other relevant documents. The cost of retaining such Reviewing Firm
shall be borne one-half by Buyer and one-half by Seller. The Reviewing Firm
shall report its conclusions in writing to both Buyer and Seller and such
conclusions as to factual and accounting matters respecting the final Working
Capital Amount and/or the final Liability Adjustment Amount and the
calculations set forth in the Final Statement shall be conclusive on all
parties to this Agreement and not subject to review or dispute. Buyer or
Seller, as applicable, shall within ten days of the earlier to occur of (a) the
parties' agreement to the final Working Capital Amount and the final Liability
Adjustment Amount or (b) the Reviewing Firm's final determination of such
amounts, pay the amount owing to the other party by wire transfer of
immediately available funds.
1.4 Closing. The consummation of the transactions contemplated
herein (the "Closing") shall occur, except as otherwise mutually agreed upon by
Buyer and Seller (a) within ten (10) business days after the FCC Consent (as
defined in Section 2.1) to the transfer of control of the Station Licenses (as
defined in Section 2.1) have become Final Orders (as hereinafter defined) or
(b) at such later date that all other terms and conditions as set forth in
Articles 8 and 9 have been satisfied, or such other date as may be mutually
agreed to by the parties ("Closing Date"); provided, however, that in no event
shall the Closing occur prior to January 4, 1999. For purposes of the
Agreement, "Final Order" means action by the FCC (as defined in Section 2.1)
consenting to the transactions contemplated by this Agreement which is not
reversed, stayed, enjoined, set aside, annulled or suspended, and with respect
to which action no timely request for stay, petition for rehearing, or
reconsideration, application for review or appeal is pending, and as to which
the time for filing any such request, petition or appeal or reconsideration by
the FCC on its own motion has expired. The Closing shall be held in the
offices of Benesch, Friedlander, ▇▇▇▇▇▇ & Aronoff, LLP, 2300 BP America
Building, Cleveland, Ohio, or at such place as the parties hereto may agree.
ARTICLE 2
GOVERNMENTAL CONSENTS
2.1 FCC Consent. It is specifically understood and agreed by
Buyer and Seller that the Closing and the transfer of control of the Station
Licenses and the transfer of the Shares are expressly conditioned on and are
subject to the prior consent and approval of the Federal Communications
Commission ("FCC Consent"). "Station Licenses" means all of the
4
13
Companies' rights in and to the licenses, permits and other authorizations
issued to the Companies by any governmental authority, including those issued
by the FCC, used in connection with the operation of the Station, along with
renewals or modifications of such items between the date hereof and the
Closing, including but not limited to those listed in Schedule 2.1 hereto.
2.2 FCC Applications. Within ten business days after the
execution of this Agreement or such earlier time as shall be agreed to by all
of the parties hereto, Buyer, Seller and the Companies shall file applications
with the FCC for the FCC Consent ("FCC Application").
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANIES
3.1 Representations and Warranties of Seller and the Companies.
Seller and the Companies, jointly and severally, represent and warrant to the
Buyer the following:
3.1.1 Title to Shares. Seller is the true and lawful
owner, of record and beneficially, of the Shares. Except as set forth on
Schedule 3.1.1, the Shares are, and at the Closing will be, owned by Seller
free and clear of all Liens. Except as set forth on Schedule 3.1.1, other than
the rights and obligations arising under this Agreement, none of the Shares is
subject to any rights of any other person to acquire the same. Except as set
forth on Schedule 3.1.1, none of the Shares is subject to any Liens (as defined
in Section 3.1.13) or restrictions on transfer thereof, except for restrictions
imposed by applicable federal and state securities laws.
3.1.2 Subsidiaries. (a) Except as set forth on Schedule
3.1.2, none of the Companies or WINCO Subsidiaries (as defined in Section
3.1.3) have any subsidiaries or any debt or equity investment in any other
corporation, partnership, joint venture or other business enterprise.
(b) Each of the WINCO Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation. The WINCO Subsidiaries have no
assets (other than its respective corporate seal, minute books, charter
documents, stock record books and other books and records as pertain to its
organization, existence and share capitalization) or liabilities. WIN-Indiana
(as defined in Section 3.1.3) and WIN-Florida (as defined in Section 3.1.3)
have no, and since
5
14
October 1, 1993 and July 31, 1990, respectively, have had no operations of any
kind. None of the Companies have any liabilities arising from or relating to
the WINCO Subsidiaries.
3.1.3 Capital Stock. The authorized capital stock of
WINCOM consists solely of 2,500 shares of common stock, without par value,
1,275 of which are issued and outstanding. The authorized capital stock of
WINCO consists solely of 750 shares of common stock, without par value, 99.99
of which are issued and outstanding. The authorized capital stock of WIN
Communications Inc. of Indiana, an Indiana corporation ("WIN-Indiana"),
consists solely of 1,000 shares of common stock, without par value, all of
which are issued and outstanding. The authorized capital stock of Win
Communications of Florida, Inc., a Florida corporation ("WIN-Florida," and
together with WIN-Indiana, the "WINCO Subsidiaries") consists solely of 750
shares of common stock, par value $10.00 per share of which 100 are
outstanding. There are no shares of capital stock of the Companies or of the
WINCO Subsidiaries held in treasury. All of the outstanding shares of capital
stock of the Companies and the WINCO Subsidiaries are duly authorized and
validly issued, fully paid and nonassessable. None of the outstanding shares
of the Companies or of the WINCO Subsidiaries were issued in violation of any
preemptive or preferential right. There are no other equity securities of the
Companies or of the WINCO Subsidiaries outstanding. There are outstanding no
securities or indebtedness convertible into, exchangeable for or carrying the
right to acquire, common stock or other equity securities of the Companies or
of the WINCO Subsidiaries, or subscriptions, warrants, options, rights or other
arrangements or commitments obligating the Companies or the WINCO Subsidiaries
to issue or dispose of any of their common stock or other equity securities or
any ownership therein, except as set forth in Schedule 3.1.3 hereto. Except as
set forth on Schedule 3.1.1, there are no voting trusts, proxies or other
agreements or understandings with respect to the voting of any capital stock of
the Companies or the WINCO Subsidiaries.
3.1.4 Organization, Good Standing, Etc. (a) Seller is a
limited partnership and the Companies are corporations duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation and each has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted and
is duly qualified to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its properties makes such
qualification necessary, other than in such jurisdictions where the failure to
so qualify has not had and would not reasonably be expected to have a material
adverse effect on the assets, liabilities or the business of the Companies or
the Station, or on Seller's or the Companies' ability to consummate the
transactions contemplated by this Agreement (a "Material Adverse Effect").
6
15
(b) Each of Seller and the Companies has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Seller and the Companies and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of Seller and the Companies. This Agreement has been duly
executed and delivered by Seller and the Companies and constitutes the legal,
valid and binding obligation of Seller and the Companies, enforceable against
each of them in accordance with its terms.
3.1.5 Authority. Assuming the consents identified in this
Section 3.1.5 and Section 3.1.17 are obtained, neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby by the Companies or Seller (a) violate, conflict with or
result in any breach of any provision of the certificate of limited
partnership, limited partnership agreement, articles of incorporation or code
of regulations (whether written or oral) of Seller or either of the Companies,
(b) violate, conflict with or will result in a violation or breach of, or
constitute a default (with or without due notice or lapse of time or both)
under, or permit the termination of, or will result in the acceleration of, or
entitle any party to accelerate (whether as a result of the sale of the Shares
or otherwise) any obligation, or result in the loss of any benefit, or give
rise to the creation of any lien, charge, security interest or encumbrance upon
any of the properties or assets of Seller or the Companies under any of the
terms, conditions or provisions of any loan or credit agreement, note, bond,
mortgage, indenture or deed of trust, or any license, lease, agreement or other
instrument or obligation to which any of them are a party or by which they or
any of their properties or assets may be bound or affected, or (c) violate any
order, writ, judgment, injunction, decree, statute, rule or regulation, of any
court, administrative agency or commission or other governmental authority or
instrumentality (a "Governmental Entity") applicable to Seller or either of the
Companies or any of their respective properties or assets, except, in the case
of (b) and (c) above, for those violations that individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
No consent, approval, order or authorization of, or registration, declaration
or filing with, any Governmental Entity is required by or with respect to
Seller or either of the Companies in connection with the execution, and
delivery of this Agreement by Seller or either of the Companies or the
consummation by Seller or either of the Companies of the transactions
contemplated hereby, except for (x) the filing of a premerger notification
report under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and the expiration of the applicable waiting period
thereunder, and (y) the FCC Consent.
7
16
3.1.6 Financial Statements. Attached as Schedule 3.1.6 are
copies of the (a) Companies' consolidated unaudited balance sheet of WINCOM and
its subsidiaries at (x) December 31, 1996 and the related statements of
operations for the fiscal year then ended; and (y) December 31, 1997 and the
related statements of operations for the fiscal year then ended (the "Draft
1997 Financial Statements") and (b) unaudited balance sheets of WINCO as of May
31, 1997 and 1998, and the related statements of income for the periods then
ended (such financial statements collectively being referred to as the
"Companies' Financial Statements"). Except as set forth on Schedule 3.1.6
hereto, the Companies' Financial Statements were prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby ("GAAP") and present fairly, in all
material respects, the financial position and results of operations of WINCOM
and its subsidiaries (or WINCO, as the case may be) as of such dates and for
the periods then ended (subject to the absence of notes and to normal,
recurring adjustments that would not be material in the aggregate), other than
Trade Agreements.
3.1.7 Absence of Undisclosed Liabilities. There are no
material liabilities of the Companies of any kind whatsoever (whether absolute,
accrued, contingent or otherwise, and whether due or to become due) that are
required to be reflected on, or disclosed in the notes to, a consolidated
balance sheet of the Companies prepared in accordance with GAAP, other than
liabilities and obligations (a) provided for or reserved against in WINCO's
unaudited balance sheet at May 31, 1998 described in Section 3.1.6 (the "May
1998 Balance Sheet") or reflected in the notes thereto or (b) arising after May
31, 1998, in the ordinary course of business and consistent with past practices
and which individually or in the aggregate have not had and could not
reasonably be expected to have a Material Adverse Effect.
3.1.8 Compliance with Applicable Laws, FCC Matters. (a)
Except as permitted or contemplated hereby, the operations of the Companies,
including, without limitation, the operation of the Station have been and now
are being conducted in substantial compliance, in all material respects, with
the Station Licenses, each law, ordinance, regulation, judgment, decree,
injunction, rule or order of the FCC or any other Governmental Entity binding
on the Companies or its respective properties or assets. No investigation or
review by any Governmental Entity with respect to the Companies is pending or,
to Seller's or the Companies' knowledge, is threatened. Without limiting the
generality of the foregoing, each of Seller and the Companies has complied in
all material respects with the Communications Act of 1934, as amended (the
"Communications Act"), all rules, regulations and written policies of the FCC
thereunder, all obligations with respect to equal opportunity under applicable
law, and the FCC's policy on exposure to radio frequency radiation applicable
to the Station. No renewal of any Station Licenses would constitute a
8
17
major environmental action under the rules of the FCC. Access to the Station's
transmission facilities are restricted in accordance with the policies of the
FCC. In addition, each of Seller and the Companies has duly and timely filed,
or caused to be filed, with the appropriate Governmental Entities all reports,
statements, documents, registrations, filings or submissions with respect to
the operations of the Companies, including, without limitation, the operation
of the Station and the ownership thereof, including, without limitation,
applications for renewal of authority required by applicable law to be filed.
All such filings complied in all material respects with applicable laws when
made and to the Seller's or the Companies' knowledge, no deficiencies have been
asserted with respect to any such filings. All of the material required by 47
C.F.R. Section 73.3526 to be kept in the public inspection files of the
Station is in such files. Except as disclosed on Schedule 3.1.8, neither
Seller nor either of the Companies has knowledge of any fact or circumstance
relating to the Companies or the Station arising from noncompliance with the
Communications Act, or the rules, regulations or written policies of the FCC in
effect on the date of this Agreement that could reasonably be expected to (i)
disqualify Seller from assigning the Shares to the Buyer or (ii) prevent or
delay the consummation by Seller and Buyer of the transactions contemplated by
this Agreement.
(b) Schedule 2.1 lists (i) all licenses, permits and
other authorizations (including all STL licenses and construction permits)
issued to the Companies or the Seller by the FCC relating to the Station and
held by them as of the date of this Agreement and (ii) all licenses, permits,
or authorizations issued to the Companies by any other Governmental Entities.
Such licenses, permits and authorizations, and all applications for
modification, extension or renewal thereof or for new licenses, permits,
permissions or authorizations that would be material to the operations of the
Station, are collectively referred to herein as the Station Licenses (as
further defined in Section 2.1), each of which is in full force and effect.
All towers and other structures used in the operation of the Station or located
on the Real Property are obstruction marked and lighted to the extent required
by, and in accordance with the rules and regulations of the FAA, the FCC and
other federal, state and local authorities. Appropriate notifications to the
FAA and registrations with the FCC have been filed for such towers where
required. Except for proceedings affecting the radio broadcast industry
generally, there are no proceedings pending or, to Seller's or the Companies'
knowledge, threatened with respect to the Companies' ownership or operation of
the Station which reasonably may be expected to result in the revocation,
material adverse modification, non-renewal or suspension of any of the Station
Licenses, the denial of any pending applications for Station Licenses, the
issuance against the Companies of any cease and desist order, or the imposition
of any administrative actions by the FCC or any other Governmental Entity with
respect to the Station Licenses, or which reasonably may be expected to
adversely affect the Station's ability to operate as currently operated or
Buyer's
9
18
ability to obtain assignment of the Shares. With the exception of such
temporary reduced power operations as are necessary for routine maintenance,
the Station operates (i) in conformity with its licenses and (ii) within the
operating power tolerances specified in 47 C.F.R. Section 73.1560(b). No
other broadcast station or radio communications facility is causing
interference to the Station's transmissions beyond that which is allowed by FCC
rules and regulations. The Companies have all necessary authority to use the
call signs set forth on Schedule 2.1.
3.1.9 Litigation. Except as disclosed on Schedule 3.1.9,
there are no actions, suits, inquiries, judicial or administrative proceedings,
or arbitrations pending or, to the knowledge of Seller or either of the
Companies, threatened against Seller, or any of the Companies or the WINCO
Subsidiaries or any of their respective properties or assets by or before any
arbitrator or Governmental Entity nor are there any investigations relating to
Seller or any of the Companies or the WINCO Subsidiaries or any of their
respective properties or assets pending or, to the knowledge of Seller or
either of the Companies threatened by or before any arbitrator or Governmental
Entity that has had or that reasonably could be expected to have a Material
Adverse Effect. There are no material judgments, decrees, injunctions, or
orders of any Governmental Entity or arbitrator outstanding against Seller or
any of the Companies or the WINCO Subsidiaries or any of their respective
properties or assets. There is no action, suit, inquiry, judicial or
administrative proceeding pending or, to the knowledge of Seller or either of
the Companies threatened against Seller or any of the Companies or the WINCO
Subsidiaries by a third party relating to the transactions contemplated by this
Agreement.
3.1.10 Insurance. Schedule 3.1.10 sets forth a list of all
fire, liability and other forms of insurance and all fidelity bonds held by or
applicable to the Companies or the Station setting forth in respect of each
such policy the policy name, policy number, carrier, term, type of coverage and
annual premium, each of which is in full force and effect on the date hereof,
valid and enforceable in accordance with its terms and in amounts which are
adequate in relation to the business and assets of the Companies and the
Station. To Seller's knowledge, no event has occurred, including, without
limitation, the failure by Seller or either of the Companies to give any notice
or information, or the delivery of any inaccurate or erroneous notice or
information, which limits or impairs the rights of Seller or either of the
Companies under any such insurance policies. The Companies shall keep
comparable policies of insurance in effect for acts, omissions and events
occurring on or prior to the Closing Date.
10
19
3.1.11 Real Estate. (a) The Companies have, and upon
Closing, will continue to have, good and marketable title to the Owned Real
Estate (as hereinafter defined) and, except as set forth on Schedule 3.1.11,
valid leaseholds in the Leased Real Estate (as defined in subparagraph (c)
below), free and clear of any Liens except for the Permitted Liens (as defined
in Section 3.1.13). The buildings (or portions thereof), improvements and
fixtures that are included in the Real Estate (as defined in subparagraph (c)
below) are suitable for their intended use. The Companies own, or have a valid
right to use adequate routes of ingress and egress to, from and over all of the
Real Estate necessary to operate the Station. The Real Estate has adequate
water supply, sewage and waste disposal facilities, is connected to and served
by telephone, gas, electricity and other utility equipment facilities and
services necessary for the operation or use of the Real Estate. Such
facilities and services are adequate for the present use and operation of the
Real Estate on a fully occupied basis, and are installed and connected pursuant
to valid material permits and are in material compliance with all material
governmental regulations. To Seller's and the Companies' knowledge, no fact or
condition exists which would result in the termination or impairment of the
furnishing of utility services to the Real Estate. Schedule 3.1.11 lists the
street address and/or legal descriptions of the Owned Real Estate and the
street addresses and/or legal descriptions of the Leased Real Estate. All real
estate Taxes, assessments and use charges pertaining to the Owned Real Estate
that have become due have been paid in full.
(b) The Real Estate, any improvements thereon, and the
use by the Companies thereof, conform in all material respects, to (i) all
applicable laws, including but not limited to zoning requirements and the
Americans With Disabilities Act, and (ii) all restrictive covenants, if any.
There are no eminent domain proceedings pending, or to Seller's and the
Companies' knowledge, threatened against the Real Estate. All material
improvements (i) have been constructed in a good and workmanlike manner, free,
in all material respects, from defects in workmanship and material; and (ii)
have been constructed, occupied, maintained and operated in material compliance
with all applicable laws, insurance requirements, contracts, leases, permits,
licenses, ordinances, restrictions, building set-back lines, covenants,
reservations, and easements, and neither of the Companies have received any
notice, written or verbal, claiming any material violation of any of the same
or requesting or requiring the performance of any material repairs, alterations
or other work in order to so comply. Other than Permitted Liens, no
improvement on any of the Real Estate encroaches upon any adjacent real
property of any other person or entity. The heating, air conditioning,
plumbing, ventilating, utility, sprinkler and other mechanical and electrical
systems, apparatus and appliances located on the Real Estate or in the
improvements are in good operating condition (normal wear and tear excepted),
free from material defects in workmanship and material.
11
20
(c) The "Owned Real Estate" means all real property owned
by the Companies together with all appurtenant easements thereunto and all
structures, fixtures and improvements located thereon as more fully described
in Schedule 3.1.11 hereto, together with any additions thereto between the date
hereof and the Closing. The "Leased Real Estate" means all rights and
interests of the Companies under any and all of the leases of real property
held by the Companies as more fully described in Schedule 3.1.11. The "Real
Estate" means the Owned Real Estate together with the Leased Real Estate.
3.1.12 Personal Property. Schedule 3.1.12 hereto contains a
list of all material tangible personal property and assets owned or held by the
Companies (other than Real Estate, which is addressed in the foregoing Section
3.1.11). Except as disclosed in Schedule 3.1.12, the Companies own and will
have as of the Closing, good and marketable title to all property referred to
in the immediately preceding sentence and none of such property is, or at the
Closing will be, subject to any Liens (as defined in Section 3.1.13) other than
Permitted Liens (as defined in Section 3.1.13). The tangible personal property
and fixtures owned or used by the Companies are, in all material respects, in
good operating condition (subject to normal wear and tear) and are sufficient
to permit the conduct of the business of the Station in material compliance
with FCC rules and regulations. The Companies own or hold under valid leases
all of the tangible personal property and fixtures necessary to conduct the
business of the Companies as presently conducted. The assets owned or held by
the Companies (including the Real Estate) constitute all of the assets, rights
and properties that are required for the operation of the Companies and the
Station as they are now conducted.
3.1.13 Liens and Encumbrances. All properties and assets,
including leases, owned by the Companies are free and clear of all liens,
pledges, claims, security interests, restrictions, mortgages, tenancies and
other possessory interests, conditional sale or other title retention
agreements, assessments, easements, rights of way, covenants, restrictions,
rights of first refusal, defects in title, encroachments and other burdens,
options or encumbrances of any kind (collectively, "Liens") except (a)
statutory Liens securing payments not yet delinquent or the validity of which
are being contested in good faith by appropriate actions, (b) purchase money
Liens arising in the ordinary course, (c) Liens for Taxes (as defined in
Section 3.1.15(k)) not yet delinquent, (d) Liens securing indebtedness, all of
which Liens will be discharged at the Closing upon repayment by Seller of all
amounts due and owing, (e) Liens which in the aggregate do not materially
detract from the value or materially impair the present and continued use of
the properties or assets subject thereto in the usual and normal conduct of the
business of the Companies, (f) Liens on leases arising from the provisions of
such leases, (g) zoning ordinances and (h) any other permitted
12
21
exceptions listed on Schedule 3.1.13 hereto (the Liens referred to in clauses
(a) through (h) being "Permitted Liens").
3.1.14 Environmental Matters.
On the date of this Agreement, except as disclosed on Schedule 3.1.14:
(a) The Station and any and all Real Estate is, and to
any of Seller's and the Companies' actual knowledge with respect to
any predecessor or prior owner, operator or lessee (each a
"Predecessor") has been, in compliance in all material respects, with
all Environmental Laws (as defined in subparagraph (f) below;
(b) No judicial or administrative proceedings are pending
or, to the knowledge of the Seller or either of the Companies,
threatened against Seller or either of the Companies, relating to any
of the Real Estate alleging the violation of or seeking to impose
liability on Seller or either of the Companies pursuant to any
Environmental Law. Neither the Seller nor either of the Companies has
received any written notice, claim or other written communication from
any Governmental Entity or other person alleging the violation of or
liability under any Environmental Laws in connection with any of the
Real Estate or operations thereon;
(c) There are no facts, circumstances or conditions
associated with Real Estate or the operations thereon that could
reasonably be expected to give rise to a material environmental claim
against the Station or the owner or operator thereof or result in the
Station or the owners or operators thereof incurring material
Environmental Costs and Liabilities (as defined in subparagraph (f)
below);
(d) All substances, materials or waste that are regulated
by federal, state or local government under the Environmental Laws as
hazardous, toxic or a pollutant or contaminant as well as any
petroleum or petroleum derived product (collectively, "Hazardous
Substances"), used or generated by the Companies or to Seller's or
either of the Companies' actual knowledge, by any Predecessor in
connection with the Real Estate, have been stored, used, treated, and
disposed of by such persons or on their behalf in such manner as not
to result in any material Environmental Costs or Liabilities;
(e) There are not now, nor have there been in the past,
on, in or under any Real Estate when owned, leased or operated by the
Companies or, to Seller's or either of the Companies' knowledge, when
owned, leased or operated by any
13
22
Predecessor, any of the following: any (i) underground storage tanks,
above-ground storage tanks, dikes or impoundments containing Hazardous
Substances, (ii) asbestos containing materials, (iii) polychlorinated
biphenyls or related compounds (other than those labeled and
maintained in accordance with applicable Environmental Laws) in
amounts or concentrations regulated under the Environmental Laws or
(iv) radioactive substances in amounts or concentrations regulated
under the Environmental Laws; and
(f) For purposes of this Section 3.1.14, the following
terms have the following meanings: "Environmental Laws" shall mean all
applicable federal, state and local laws, statutes, codes, rules,
regulations, common law or other legal requirements relating the
environment, natural resources, and public or employee health and
safety; "Environmental Costs and Liabilities" means any losses,
including environmental remediation costs, liabilities, obligations,
damages, fines, penalties or judgments, arising from or under any
Environmental Law or order of or agreement with any Governmental
Entity or other person.
3.1.15 Taxes. (a) All Tax Returns (as defined in
subsection (l) below) that are required to be filed by or on behalf of the
Companies on or before the execution of this Agreement have been duly filed on
a timely basis under the statutes, rules and regulations of each jurisdiction
in which such Tax Returns are required to be filed and Seller and the Companies
will file or will cause to be duly filed, all Tax Returns required to be filed
by or on behalf of the Companies on or prior to the Closing Date and with
respect to any taxable period prior to or which includes the Closing Date. All
such Tax Returns are (or will be) complete and accurate in all respects.
Except as set forth on Schedule 3.1.15, all Taxes, whether or not reflected on
the Tax Returns, which are due with respect to the Companies and any Affiliates
as of the date hereof have been timely paid by the Companies, and/or any such
Affiliates. For the purposes of this Section 3.1.15, Affiliates shall mean any
entity that files a consolidated, combined or unitary, Tax Return with the
Companies. All Taxes, whether or not reflected on the Tax Returns, which are
due with respect to the Companies through the Closing Date will be included as
a liability in Working Capital Amount or the Liability Adjustment Amount.
(b) No claim for assessment or collection of Taxes has
been asserted against the Companies or any Affiliates. Neither of the
Companies nor any of their Affiliates are a party to any pending audit, action,
proceeding or investigation by any Governmental Entity for the assessment or
collection of Taxes nor do either of the Companies or any of their Affiliates
have knowledge of any threatened audit, action, proceeding or investigation.
No deficiencies for any Taxes have been proposed, asserted or assessed against
either of the Companies or their Affiliates that have not been fully paid.
14
23
(c) Neither of the Companies nor any of their Affiliates
has waived or extended any statutes of limitation for the assessment or
collection of Taxes. No claim has ever been made by a Governmental Entity in a
jurisdiction where either of the Companies or any of their Affiliates do not
currently file Tax Returns that it is or may be subject to taxation by that
jurisdiction nor are either of the Companies or any of their Affiliates aware
that any such assertion of jurisdiction is pending or threatened. No Liens,
other than Permitted Liens (whether filed or arising by operation of law), have
been imposed upon or asserted against any of the assets of the Companies as a
result of or in connection with any failure, or alleged failure to pay any Tax.
(d) The Companies have withheld and paid over to the
appropriate Governmental Entity all Taxes required to be withheld in connection
with any amounts paid or owing to any employee, creditor, independent
contractor or other third party.
(e) Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code").
(f) There is no contract, agreement, plan or arrangement
covering any person that, individually or collectively (either alone or upon
the occurrence of any additional or subsequent event), could give rise to the
payment of any amount that would not be deductible by the Companies by reason
of Section 280G of the Code.
(g) The Companies have not (A) filed a consent pursuant
to Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code
apply to the disposition of a subsection (f) asset (as such term is defined in
Section 341(f)(4) of the Code) owned by the Companies, (B) agreed nor are
required to make any adjustments pursuant to Section 481(a) of the Code or any
other similar provision of state, local or foreign law by reason of a change in
accounting method initiated by the Companies or have any knowledge that the
Internal Revenue Service ("IRS") has proposed any such adjustment or change in
accounting method, or has any application pending with any Governmental Entity
requesting permission for any changes in accounting methods that relate to the
business or operations of the Companies, (C) executed or entered into a closing
agreement pursuant to Section 7121 of the Code or any predecessor provision
thereof or any similar provision of state, local or foreign law with respect to
the Companies, (D) requested any extension of time within which to file any Tax
Return, which Tax Return has since not been filed, or (E) executed a power of
attorney with respect to any Tax matter which is currently in force.
15
24
(h) No property owned by the Companies constitutes (i)
"tax-exempt use property" within the meaning of Section 168(h)(1) of the Code,
(ii) "tax-exempt bond financed property" within the meaning of Section 168(g)
of the Code, or (iii) "limited use property" (as that term is used in Rev.
Proc. 76-30), nor is any such property required to be treated as owned by
another person pursuant to the provisions of Section 168(f)(8) of the Internal
Revenue Code of 1954, as amended and in effect immediately prior to the
enactment of the Tax Reform Act of 1986.
(i) The Companies are not a party to any tax sharing, tax
indemnification or similar agreement or arrangement (whether or not written)
with respect to Taxes pursuant to which either of them will have any obligation
to make any payments after the Closing Date.
(j) None of the Companies nor any WINCO Subsidiaries has
ever been a member of any consolidated, combined, unitary or affiliated group
of corporations for any Tax purposes, other than the affiliated group of which
WINCOM is the common parent.
(k) For federal income tax purposes, Seller is treated as
a partnership and not as an association or "publicly traded partnership"
taxable as a corporation.
(l) For purposes of this Agreement, the terms "Tax" and
"Taxes" shall mean all federal, state, local, or foreign taxes, assessments,
duties, levies or similar charges of any kind including, without limitation,
all income, payroll, Medicare, withholding, unemployment insurance, social
security, sales, use, service, service use, leasing, leasing use, excise,
franchise, gross receipts, value added, alternative or add-on minimum,
estimated, occupation, real and personal property, stamp, duty, transfer,
workers' compensation, severance, windfall profits, environmental (including
Taxes under Section 59A of the Code), other Tax, charge, fee, levy or
assessment of the same or of a similar nature, including any interest, penalty,
or addition thereto whether disputed or not. The term "Tax Return" means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes or any amendment thereto, and including any
schedule or attachment thereto.
3.1.16 Personnel. Attached as Schedule 3.1.16 is a complete
and correct list as of the date of this Agreement of the names, positions, and
location of all employees or other station and broadcast personnel (whether
employees or independent contractors) of the Companies, which sets forth the
current salaries of all such employees and the other compensation arrangements
with all General Managers, Station Managers, General Sales Managers, Local
Sales Managers, National Sales Managers, Program Directors,
16
25
Business Managers and Traffic Managers (collectively, "Station Management"),
all on-the-air broadcast personnel of the Station and all directors and
officers of the Companies and indicates which of those employees, Station
Management, on-the-air broadcast personnel, or director or officer is a party
to an employment or consulting or similar contract with the Companies. The
Companies have delivered to Buyer accurate and complete copies of all such
employment agreements, confidentiality agreements and all other agreements,
plans and other instruments to which either of the Companies is a party and
under which such employees are entitled to receive benefits of any value that
involve payment by or to the Companies in excess of $25,000.
3.1.17 Certain Agreements. The Contracts (as defined below)
are the only contractual agreements necessary to carry out the business and
operations of the Companies and the Station as currently conducted. Each
Contract is a valid and binding obligation of the applicable Companies and is
in full force and effect and, to the knowledge of Seller and the Companies,
each other party to such Contract, has performed in all material respects the
obligations required to be performed by it and is not (with or without lapse of
time or the giving of notice, or both) in material breach or default
thereunder. Schedule 3.1.17 identifies, as to each Contract, whether the
consent of the other party thereto is required in order for such Contract to
continue in full force and effect upon the consummation of the transactions
contemplated hereby. "Contracts" means all of the Companies' right in and
under those contracts, agreements, leases and legally binding contractual
rights of any kind, written or oral, relating to the operation of the Companies
listed in Schedule 3.1.17 hereto and (i) those contracts entered into by the
Companies between the date hereof and the Closing in the ordinary course of
business of the Companies consistent with past practices, subject to Section
5.1 hereto; (ii) all contracts for the sale of advertising time for cash,
subject to Section 5.1 hereto; and (iii) all Trade Agreements, subject to
Section 5.1 hereto; and (iv) all other contracts, agreements, leases,
understandings, arrangements and legally binding contractual rights of any
kind, written or oral, to which the Companies is a party or by which either of
the Companies' assets or properties are bound that involve a payment by or to
the Companies of less than $25,000 individually or $150,000 in the aggregate.
There has not been (i) any threatened cancellation of any material Contracts,
(ii) any outstanding disputes, of a material nature, under any material
Contracts or (iii) to Seller's or the Companies' knowledge, any bases for any
claims of breach or default thereunder. Seller and the Company have no
knowledge that any of the material Contracts that are renewable will not be
renewed by the other party on commercially reasonable terms.
3.1.18 ERISA Compliance. (a) Neither of the Companies nor
any other trades or businesses under common control, or which is treated as a
single employer with either of the Companies under Sections 414(b),(c),(m) or
(o) of the Code (collectively,
17
26
the "ERISA Group") has, within the past six years, contributed or been
obligated to contribute to any "multi-employer plan" as such term is defined in
Section 3(37) or Section 4001(a)(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") except as disclosed on Schedule 3.1.18.
Schedule 3.1.18 lists all "employee benefit plans" within the meaning of
Section 3(3) of ERISA and bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, salary continuation, educational assistance, club
memberships, company car (other than those provided to employees pursuant to
employment agreements listed on Schedule 3.1.18 hereto), retirement, vacation,
severance, disability, death benefit, hospitalization, insurance or other plan
or arrangement or understanding providing benefits to any present or former
employee or contractor of either of the Companies or as to which either of the
Companies (with respect to such individuals) has any liability or obligation
(collectively, "Employee Benefit Plans"). Accurate and complete copies of such
plans and their related summary plan descriptions have been delivered or made
available to Buyer. The ERISA Group does not maintain or contribute to, and is
not obligated to maintain or contribute to, any employee pension benefit plan,
as defined in Section 3(2) of ERISA, subject to Title IV of ERISA.
(b) Each Employee Benefit Plan and its related trust
intended to qualify under Sections 401 and 501(a) of the Code, respectively,
has received an opinion letter or notification from the IRS issued to the
prototype provider for such plan to the effect that the form of plan is
qualified under Section 401 of the Code and its related trust is exempt under
Section 501(a) of the Code and, to the knowledge of the Companies, nothing has
occurred that would have a material adverse effect on the qualified status of
such plan.
(c) All contributions or other payments required to have
been made by Companies to or under any Employee Benefit Plan by applicable law
or the terms of such Employee Benefit Plan have been timely and properly made
or, where applicable, accrued for on the Companies' Financial Statements to the
extent required by GAAP.
(d) Except as disclosed in Schedule 3.1.18, the Employee
Benefit Plans have been maintained and administered in all material respects in
accordance with their terms and applicable laws.
(e) Except as disclosed in Schedule 3.1.18, there are no
pending or, to the knowledge of either of the Companies, threatened actions,
claims or proceedings against or relating to any Employee Benefit Plan other
than routine benefit claims by persons entitled to benefits thereunder.
18
27
(f) Except as disclosed in Schedule 3.1.18, neither of
the Companies maintain or have an obligation to contribute to retiree life or
retiree health plans which provide for continuing benefits or coverage for
current or former officers, directors or employees of the Companies except (i)
as may be required under Part 6 of Title I of ERISA) and at the sole expense of
the participant or the participant's beneficiary or (ii) a medical expense
reimbursement account plan pursuant to Section 125 of the Code.
(g) Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will (i) result in
any payment becoming due to any employee of either of the Companies, (ii)
increase any amounts otherwise payable under any Employee Benefit Plan or (iii)
result in the acceleration of the time of payment or vesting of any such
benefits.
3.1.19 Labor. The Companies have not agreed to recognize
any union or other collective bargaining unit, nor has any union or other
collective bargaining unit been certified as representing any of its employees.
Except as disclosed on Schedule 3.1.19, since June 30, 1995, the Companies (a)
are and have been in compliance, in all material respects, with all applicable
laws regarding employment and employment practices, terms and conditions of
employment, wages and hours, and plant closing, occupational safety and health
and workers' compensation and is not engaged, nor has it engaged, in any unfair
labor practices, (b) have no, and have not had, any unfair labor practice
charges or complaints pending or, to Seller's or either of the Companies'
knowledge, threatened against either of the Companies before the National Labor
Relations Board, (c) have no and have not had any grievances pending or, to
Seller's or either of the Companies' knowledge, threatened against either of
the Companies and (d) have no, and have not had any charges pending or, to
Seller's or the Companies' knowledge, threatened against either of the
Companies before the Equal Employment Opportunity Commission, the FCC or any
state or local agency responsible for the prevention of unlawful employment
practices. There is no labor strike, slowdown, work stoppage or lockout
actually pending or, to the knowledge of Seller or either of the Companies,
threatened against or affecting either of the Companies. To Seller's and the
Companies' knowledge, no union organizational campaign or representation
petition is currently pending with respect to the employees of the Companies.
3.1.20 Patents, Trademarks, Etc. Schedule 3.1.20 sets forth
all call letters, patents, patent applications, trademarks, trade names,
Internet domain names, service marks, trade secrets, applied for, issued, owned
or used, copyrights and other proprietary Intellectual Property (as defined
below) used in the operation of the Companies' businesses (whether owned,
leased or licensed by the Companies). The Companies have, and upon the Closing
will continue to have, good and marketable title to the material Intellectual
Property
19
28
owned by them, free and clear of any Liens except for Permitted Liens and for
any infringement claims by third parties of which Seller is not aware. Neither
of the Companies has received any notice of any claimed conflict, violation or
infringement of such Intellectual Property rights, and to Seller's and the
Companies' knowledge, none of such Intellectual Property rights are being
infringed by any third party. To Seller's knowledge, the operation of the
Companies' businesses do not infringe on the intellectual property rights of
any other person. "Intellectual Property" means all of the Companies' rights
in and to all call letters, trademarks, trade names, service marks, franchises,
copyrights, Internet domain names, including registrations and applications for
registration of any of them, computer software programs and programming
material of whatever form or nature, jingles, slogans, the Station's logos and
all other logos or licenses to use same and all other intangible property
rights of the Companies, including, but not limited to those listed on Schedule
3.1.20 hereto together with any associated goodwill and any additions thereto
between the date hereof and the Closing.
3.1.21 Absence of Certain Changes or Events. Except as
contemplated or expressly permitted by this Agreement or as disclosed on
Schedule 3.1.21, since December 31, 1997 there has not been (a) any material
damage, destruction or loss of any kind with respect to the Companies or the
Station not covered by valid and collectible insurance, nor, to Seller's or the
Companies' knowledge, has there been any event or circumstance which has had or
reasonably could be expected to have a Material Adverse Effect; (b) the
execution of any agreement with any Station Management or broadcast personnel
of the Companies (whether an employee or independent contractor) providing for
his/her employment, or any increase in compensation or severance or termination
of benefits payable or to become payable by the Companies to any officer,
Station Management, or broadcast personnel of the Companies (whether an
employee or independent contractor), or any increase in benefits under any
collective bargaining agreement, except as to all of the foregoing in this
clause (b), in the ordinary course of business consistent with past practices
and except as permitted by Section 5.1.1 or (c) any change by either of the
Companies in their financial or Tax accounting principles or methods, except
insofar as required by GAAP, applicable law or circumstances which did not
exist as of the date of the December 31, 1997 balance sheet included in the
Companies' 1997 Audited Financial Statements (as defined in Section 5.14.
3.1.22 Commission or Finder's Fees. Neither Seller, either
of the Companies, or any entity acting on behalf of any of them has agreed to
pay a commission, finder's fee or similar payment to any person or entity in
connection with this Agreement or any matter related hereto.
20
29
3.1.23 Full Disclosure. No representation or warranty by
Seller or either of the Companies contained in this Agreement (including the
Schedules hereto) or in any certificate furnished pursuant to this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit to state any material fact necessary, in light of the circumstances
under which it was or will be made, in order to make the statements herein or
therein not misleading.
3.1.24 The Companies' Financial Condition. No insolvency
proceedings of any character, including, without limitation, bankruptcy,
receivership, reorganization, composition or arrangement with creditors,
voluntary or involuntary, affecting either of the Companies or any of their
respective assets or properties are pending, or to Seller's or either of the
Companies' knowledge, threatened, and neither of the Companies have made
assignment for the benefit of creditors, nor taken any action with a view to,
or which would constitute a basis for, the institution of any such insolvency
proceedings.
3.1.25 Books and Records. The books, records and accounts
of the Companies and the WINCO Subsidiaries maintained with respect to each of
the Companies, the WINCO Subsidiaries and the Station, accurately and fairly
reflect, in reasonable detail, in all material respects, the transactions and
the assets and liabilities of the applicable Companies, the WINCO Subsidiaries
and the Station. Neither Seller nor either of the Companies have engaged in
any transaction, maintained any bank account or used any of the funds of the
Companies except for transactions, bank accounts and funds which have been and
are reflected, in all material respects, in the normally maintained books and
records of the Companies.
3.1.26 Accounts Receivable. All accounts, notes and loans
receivable of the Companies reflected in the Companies' Financial Statements or
arising since the date thereof (a) arose in the ordinary course of business of
the Companies, (b) are subject to a reserve for bad debts which has been
computed in accordance with GAAP and (c) are valid and genuine. Except as set
forth on Schedule 3.1.26, all such accounts, notes and loans receivable are
free and clear of Liens. There is no right or claim of offset, no valid
defenses or counterclaims with respect to any such accounts, notes or loans
receivable. None of the obligors of such accounts, notes or loans receivable
has refused or given notice that it refuses to pay the full amount or any
material portion thereof.
3.1.27 Availability of Documents. Each of the Companies has
heretofore made available for inspection by Buyer and its representatives true,
correct and complete copies of the charter and bylaws or other organizational
documents of each
21
30
Company and of each WINCO Subsidiary, all written agreements, arrangements,
commitments, and documents referred to in the Schedules hereto, and the
corporate minute books of each Company and of each WINCO Subsidiary. Such
corporate minute books contain all of the minutes of meetings of stockholders,
board of directors, and any committees of the board of directors of the
Companies and of each WINCO Subsidiary and all of the written consents to
action executed in lieu thereof.
3.1.28 Interest in Competitors, Suppliers and Customers.
Except as set forth on Schedule 3.1.28 hereto, neither Seller nor any officer,
director, partner or Affiliate of the Companies or Seller has any ownership
interest in any competitor, supplier, customer or other service provider of the
Companies or any property used in the operation of the businesses of the
Companies.
3.1.29 Controlled Group Liability. The Companies are not
and will not be subject to any liability on account of Seller and the Companies
having been affiliated, prior to the Closing Date, directly or indirectly, with
any other entity or person under Code Section 414, ERISA Section 4001 or any
similar foreign law.
3.1.30 Barter Arrangements. Schedule 3.1.30 accurately
describes all Trade Agreements of the Companies or of Seller relating to the
operation of the Station which are outstanding as of the date hereof. With
respect to the Station, all such advertising time sold under Trade Agreements
may, at the Station's option, be, preempted by advertising time that is sold
for cash. All Trade Agreements have been entered into in the ordinary course
of business consistent with past practices.
3.1.31 Settlement Agreement. Buyer has been provided with
true and complete copies of the Letter Agreement dated January 24, 1997 between
the Rainbow-PUSH Coalition, successor to the National Rainbow Coalition, and
WINCO and all other documents related thereto (collectively, the "Settlement
Agreement"). The Settlement Agreement is a valid and binding obligation of
WINCO and is in full force and effect and WINCO has complied and satisfied all
of its obligations under the Settlement Agreement required to be satisfied as
of the date hereof and Seller and the Companies shall continue to comply with
and satisfy such obligations of WINCO through the Closing Date. WINCO has no
outstanding payment obligations under, or arising from, the Settlement
Agreement.
22
31
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller the following:
4.1.1 Organization and Standing. Buyer is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted and is duly qualified to do business in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification necessary, other than in such jurisdictions where the
failure to so qualify has not had and would not reasonably be expected to have
a material adverse effect on the assets, or the business of Buyer, or on
Buyer's ability to consummate the transactions contemplated by this Agreement.
4.1.2 Authorization and Binding Obligation. Buyer has all
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. Buyer's execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Buyer and constitutes the legal, valid and
binding obligation of Buyer, enforceable against it in accordance with its
terms.
4.1.3 Qualification. To Buyer's knowledge, there is no
fact, allegation, condition, or circumstance that could reasonably be expected
to prevent the prompt grant of the FCC Consent. Buyer knows of no fact that
would, under the Communications Act, or the rules, regulations and policies of
the FCC, disqualify Buyer from acquiring the Shares or, as of the date hereof,
otherwise require Buyer to obtain a waiver of any FCC rule, regulation or
policy in order to obtain the FCC Consent. There are no proceedings,
complaints, notices of forfeiture, claims, or investigations pending or, to the
knowledge of Buyer, threatened against any or in respect of any of the
broadcast stations licensed to Buyer or its Affiliates that would materially
impair the qualifications of Buyer to acquire the Shares or delay the FCC's
processing of the FCC Applications.
4.1.4 Absence of Conflicting Agreements or Required
Consents. Except as set forth in Schedule 4.1.4 hereof, the execution and
delivery of this Agreement, and the consummation of the transactions
contemplated hereby by Buyer: (a) do not violate, conflict with or result in
any breach of any provision of the charter or bylaws of Buyer; (b) violate,
conflict with or will result in a violation or breach of, or constitute a
default (with or without
23
32
due notice or lapse of time or both) under, or permit the termination of, or
will result in the acceleration of, or entitle any party to accelerate (whether
as a result of the sale of the Shares or otherwise) any obligation, or result
in the loss of any benefit, or give rise to the creation of any lien, charge,
security interest or encumbrance upon any of the properties or assets of Buyer
or any of its subsidiaries under any of the terms, conditions or provisions of
any loan or credit agreement, note, bond, mortgage, indenture or deed of trust,
or any license, lease, agreement or other instrument or obligation to which any
of them are a party or by which they or any of their properties or assets may
be bound or affected, or (iii) violate any order, writ, judgment, injunction,
decree, statute, rule or regulation of any Governmental Entity applicable to
Buyer or any of its respective properties or assets, except for those
violations that individually or in the aggregate could not reasonably be
expected to have a material adverse effect on Buyer's ability to consummate the
transactions contemplated by this Agreement.
4.1.5 Litigation. There are no actions, suits, inquiries,
judicial or administrative proceedings, or arbitrations pending or, to the
knowledge of Buyer, threatened against Buyer or any of its respective
properties or assets by or before any arbitrator or Governmental Entity nor are
there any investigations relating to Buyer or any of its respective properties
or assets pending or, to the knowledge of Buyer, threatened by or before any
arbitrator or Governmental Entity that has had or that reasonably could be
expected to have a material adverse effect on Buyer's ability to consummate the
transactions contemplated by this Agreement. There are no material judgments,
decrees, injunctions, or orders of any Governmental Entity or arbitrator
outstanding against Buyer or any of its respective properties or assets that
has had or that reasonably could be expected to have a material adverse effect
on Buyer's ability to consummate the transactions contemplated by this
Agreement. There is no action, suit, inquiry, judicial or administrative
proceeding pending, or, to the knowledge of Buyer, threatened against Buyer by
a third party relating to the transactions contemplated by this Agreement.
4.1.6 Commission or Finder's Fees. Neither Buyer nor any
entity acting on behalf of Buyer has agreed to pay a commission, finder's fee
or similar payment to any person or entity in connection with this Agreement or
any matter related hereto.
4.1.7 Full Disclosure. No representation or warranty by
Buyer contained in this Agreement (including the Disclosure Schedules hereto)
or in any certificate furnished pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
any material fact necessary, in light of the circumstances under which it was
or will be made, in order to make the statements herein or therein not
misleading.
24
33
4.1.8 Investment Intent; Sophisticated Buyer. Buyer (a) is
an informed sophisticated entity with sufficient knowledge and experience in
investing so as to be able to evaluate the risks and merits of its investment
in the Shares, (b) is financially able to bear the risks of investing in the
Companies, (c) has had an opportunity to discuss the business, management and
financial affairs of the Companies with the management of the Companies, (d) is
acquiring the Shares for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, (e)
understands that (i) the Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), (ii) the Shares must be held
indefinitely unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration, (f) has no present need for
liquidity in connection with its purchase of the Shares, (g) understands that
the purchase of the Shares involves a high degree of risk, and (h) acknowledges
that the purchase of the Shares is consistent with its general investment
objectives.
ARTICLE 5
COVENANTS OF SELLER AND THE COMPANIES
5.1 Each of the Companies and Seller covenant and agree with Buyer
that, pending Closing and except as otherwise agreed to in writing by Buyer:
5.1.1 Conduct Prior to the Closing Date. Each of the
Companies shall:
(a) subject to the provisions of the TBA if the
Commencement Date (as defined in the TBA) has occurred, use
commercially reasonable efforts to maintain its present business
organization, keep available the services of its present employees and
independent contractors, preserve its relationships with its customers
and others having business relationships with it, and refrain from
materially and adversely changing any of its business policies
(including but not limited to advertising (including substantially the
same amount of cash expenditure), marketing, pricing, purchasing,
personnel, sales, and budget policies);
(b) maintain its books of account and records in the
usual and ordinary manner and in accordance with GAAP except as
otherwise provided in Section 3.1.6;
(c) notify Buyer if the regular broadcast transmission of
the Station from its main transmitting facilities at full authorized
effective radiated power is interrupted for a period of more than five
consecutive hours or for an aggregate of ten or more hours in any
continuous three-day period;
25
34
(d) conduct its business in all material respects in
compliance with the terms of the Station Licenses and all applicable
laws, rules, and regulations, including, without limitation, the
applicable rules and regulations of the FCC through the Closing Date
and, subject to the provisions of the TBA if the Commencement Date has
occurred, operate in the usual and ordinary course of business in
accordance with past practices;
(e) use, repair, and, if necessary, replace any of the
Station's studio and transmission assets in a reasonable manner
consistent with historical practice and maintain its assets in
substantially their current condition, ordinary wear and tear
excepted;
(f) maintain insurance in conformity with Section 3.1.10
through the Closing Date;
(g) not knowingly incur any debts, obligations, or
liabilities (absolute, accrued, contingent, or otherwise) that include
obligations (monetary or otherwise) to be performed by Buyer after the
Closing that exceed $50,000 individually or $150,000 in the aggregate;
(h) not lease, mortgage, pledge, or subject to a lien,
claim, or encumbrance (other than Permitted Liens) any of its assets
or sell or transfer any of its assets without replacing such assets
with an asset of substantially the same value and utility;
(i) without the prior consent of Buyer, which consent
shall not be unreasonably withheld or delayed, (x) not modify or
extend any Contracts, other than Contracts for the sale of advertising
for cash, or (y) enter into any new Contract, other than Contracts for
the sale of advertising time for cash, or other than non-advertising
Contracts obligating the Companies to provide payments or benefits of
less than $50,000 each over the life of the Contract and $150,000 in
the aggregate;
(j) except for stay bonuses which are taken into account
in the Working Capital Amount or the Liability Adjustment Amount, not
make or grant any general wage or salary increase or generally
materially modify the employees' terms and conditions of employment,
other than in the ordinary course of business, consistent with past
practices, and with respect to any Station Management and on-air
personnel, the Companies shall not make or grant any wage or salary
increase or modify any terms and conditions of employment without the
prior consent of Buyer;
26
35
(k) not make (x) any change in the accounting principles,
methods, or practices followed by it or depreciation or amortization
policies or rates or (y) any change in any Tax election or settle or
compromise any Tax liability;
(l) not make any loans or make any dividends or
distributions;
(m) other than in the ordinary course of business, not
cancel or compromise any debt or claim, or waive or release any right,
of material value;
(n) not disclose to any person (other than Buyer and its
representatives) any confidential or proprietary information;
(o) use its commercially reasonable efforts to maintain
the present format of the Station and with programming consistent with
past practices;
(p) subject to the provisions of the TBA if the
Commencement Date has occurred, other than in the ordinary course of
business, not increase the number of regularly scheduled commercial
units run during the day-parts on the Station (other than changes in
the number of commercial units run during any day-part as a result of
operating difficulties that require commercial units to be broadcast
at times other than as scheduled);
(q) not make capital expenditures, or enter into any
commitment which commits the Companies to expend, in the aggregate, in
excess of $500,000;
(r) not (x) issue, grant or dispose of, or make any
agreement, arrangement or commitment obligating it to issue, grant or
dispose of, any of its capital stock or other securities, (y)
authorize or effect any reorganization, recapitalization, or split-up
of its capital stock or (z) redeem, purchase, or otherwise acquire,
directly or indirectly, any of its capital stock;
(s) not amend or otherwise change its articles of
incorporation or code of regulations or the charters or bylaws of the
WINCOM Subsidiaries; and
(t) agree to do any of the foregoing.
5.1.2 Access. The Companies and Seller shall (a) give
Buyer and Buyer's counsel, accountants, engineers and other representatives,
including environmental consultants, reasonable access during normal business
hours to all of the Companies'
27
36
properties, books, Contracts, Trade Agreements, reports and records including
financial information and Tax Returns, and to all Real Estate, buildings and
equipment, in order that Buyer may have full opportunity to make such
investigation, including but not limited to, environmental assessments, as it
desires of the affairs of the Companies and the Station and (b) furnish Buyer
with information, and copies of all documents and agreements including but not
limited to financial and operating data and other information concerning the
financial condition, results of operations and business of the Companies and
the Station, that Buyer may reasonably request. The rights of Buyer under this
Section shall not be exercised in such a manner as to interfere unreasonably
with the business of the Station.
5.1.3 Satisfaction of Conditions; Closing. Seller and the
Companies shall use all commercially reasonable efforts to conduct the business
of the Companies and the Station in such a manner that on the Closing Date the
representations and warranties of Seller and the Companies contained in this
Agreement shall be true in all material respects as though such representations
and warranties were made on and as of such date. Furthermore, the Companies
shall cooperate with Buyer and use all commercially reasonable efforts to
satisfy promptly all conditions required hereby to be satisfied by Seller and
the Companies in order to expedite the consummation of the transactions
contemplated hereby.
5.1.4 Sale of Acquired Assets; Negotiations. Neither
Seller nor either of the Companies shall, and Seller and the Companies shall
cause their respective Affiliates, directors, officers, employees, agents,
representatives, legal counsel, and financial advisors not to, (a) solicit,
initiate, accept, consider, entertain or encourage the submission of proposals
or offers from any person or entity with respect to the transactions
contemplated by this Agreement or any similar transaction wherein such person
or entity would directly or indirectly acquire all or any portion of the assets
of either of the Companies or ownership interests in either of the Companies,
or any merger, consolidation, or business combination, directly or indirectly,
with or for either of the Companies or all or substantially all of either of
the Companies' business, or (b) participate in any negotiations regarding, or,
except as required by legal process (including pursuant to discovery or
agreements existing on the date hereof), furnish to any person or entity (other
than Buyer) to do or seek any of the foregoing. Neither Seller nor either of
the Companies shall enter into any agreement or consummate any transactions
that would interfere with the consummation of the transactions contemplated by
this Agreement. Each of Seller and the Companies shall promptly notify Buyer
if it receives any written inquiry, proposal or offer described in this Section
5.1.4 or any verbal inquiry, proposal or offer described in this Section 5.1.4
that is competitive with the terms of the transactions contemplated by this
Agreement, and such Companies or Seller, as applicable, shall inform such
inquiring person or entity of the existence of this Agreement and make such
inquiring person or entity aware of Seller's and the Companies' obligations
28
37
under this Section 5.1.4. The notification under this Section 5.1.4 shall
include the identity of the person or entity making such inquiry, offer, or
other proposal, the terms thereof, and any other information with respect
thereto as Buyer may reasonably request. Neither Seller nor the Companies
shall provide any confidential information concerning the Companies' business
or properties or assets to any third party other than in the ordinary course of
the business of the Companies and consistent with prior practices of the
Companies. Seller and the Companies have ceased and caused to be terminated
any existing activities, discussions or negotiations with any person or entity
conducted heretofore with respect to any of the foregoing.
5.1.5 No Inconsistent Action. Neither Seller nor either of
the Companies shall take any action which is materially inconsistent with its
respective obligations under this Agreement.
5.1.6 Notification. Seller and the Companies shall
promptly notify Buyer in writing of (a) the failure of Seller or either of the
Companies or, to Seller's or the Companies' knowledge, any employee or agent of
Seller or the Companies to comply with or satisfy in any material respect any
covenant, condition or agreement to be complied with hereunder; (b) the
occurrence of any event that would entitle Buyer to terminate this Agreement
pursuant to Section 12.1; or (c) of any overt threat or actual resignation or
termination of any Station Management or over-the-air personnel at the Station
or any officers or directors of the Companies prior to the Closing.
5.1.7 FCC Reports. Except as set forth on Schedule 5.1.7,
the Companies shall file on a current basis through the Closing Date all
reports and documents required to be filed with the FCC with respect to the
Station Licenses. Copies of each such report and document filed between the
date hereof and the Closing Date shall be furnished to Buyer promptly after its
filing.
5.1.8 Updating of Information. Between the date of this
Agreement and the Closing Date, unless and until the Commencement Date has
occurred, the Companies will deliver to Buyer, on a monthly basis within 30
days of the end of each month, information relating to the operation of the
Station, including weekly sales reports and such other financial information
that may be reasonably requested.
5.1.9 Response to Certain Actions. Seller and the
Companies agree to cooperate and use their commercially reasonable efforts to
contest and resist any action, including administrative or judicial action, and
make reasonable attempts to have vacated, lifted, reversed or overturned any
decree, judgment, injunction or other order, whether
29
38
temporary, preliminary or permanent, that is in effect and that restricts,
prevents or prohibits the consummation of the transactions contemplated by this
Agreement.
5.1.10 Barter and Trade. Seller and the Companies shall use
their commercially reasonable efforts to (a) reduce the total amount of
advertising time owed for other than cash and (b) if the value of the
Companies' obligations to provide goods or services other than for cash is
greater than the value of the goods or services to be received by the Companies
other than for cash on or after the Closing Date, reduce such excess amount
prior to the Closing Date; provided, however, that in no event shall the
Purchase Price be decreased as result of such remaining excess value existing
as of the Closing. Any Trade Agreements entered into during the period between
the date hereof and the Closing Date shall be entered into only in the ordinary
course of the Companies' business and consistent with past practices.
5.1.11 Interim Financial Statements. Seller and the Companies
shall promptly deliver to Buyer copies of any monthly, quarterly or annual
financial statements relating to the Companies' operations that may be prepared
by either of them during the period from the date hereof through the Closing
Date. Such financial statements shall fairly present, in all material
respects, the financial position and results of operations of the Companies as
at the dates and for the periods indicated, and shall be prepared on a basis
consistent and in accordance with the basis upon which the financial statements
in Section 3.1.6 were prepared.
5.1.12 Estoppel Certificates. If requested by Buyer within 30
days of the date of this Agreement, the Companies and Seller shall use
commercially reasonable efforts to obtain from third parties the estoppel
certificates, nondisturbance agreements, and/or written clarifications of the
rights of Buyer thereunder, all in form and substance reasonably satisfactory
to Buyer.
5.1.13 Termination of RP Radio Agreement. Seller shall cause
any agreements, arrangements or understandings of the Companies or the WINCO
Subsidiaries with RP Radio, LLC (the "RP Radio Agreement") to be terminated and
of no further force and effect as of the Closing. Sellers agree that Buyer
(and following the Closing, Buyer and the Companies) shall have no obligations
or liabilities arising from or related to such agreements, arrangements or
understandings.
5.1.14 1997 Audited Financial Statements. Seller agrees that
within fifteen (15) business days from the date hereof, Seller shall provide to
Buyer true and complete copies of the consolidated audited balance sheet of
WINCOM and its subsidiaries and
30
39
Affiliated Radio Stations at December 31, 1997 and the related statements of
operations and cash flow for the fiscal year then ended, with an audit report
thereon issued by Deloitte & Touche LLP, together with unaudited combining
balance sheet and statement of operations of WINCOM and its subsidiaries (the
"1997 Audited Financial Statements"). The 1997 Audited Financial Statements,
including the related notes, will be prepared in accordance with GAAP and, will
present fairly, in all material respects, the financial position, results of
operations of WINCOM and its subsidiaries as of such date and for the period
then ended (subject to the absence of notes). The 1997 Audited Financial
Statements shall be substantially identical in all respects to the Draft 1997
Financial Statements except for the debt with Chemical Bank which will be
reclassified from long-term debt to current portion of long-term debt. Upon
the delivery of the 1997 Audited Financial Statements by Seller pursuant to
this Section 5.1.14, the Companies' Financial Statements shall be deemed to
include the 1997 Audited Financial Statements for all purposes under this
Agreement.
ARTICLE 6
COVENANTS OF BUYER
6.1 Buyer covenants and agrees that, pending the Closing and
except as otherwise agreed to in writing by Seller:
6.1.1 Notification. Buyer shall promptly notify Seller in
writing of (a) any litigation, arbitration or administrative proceeding pending
or, to its knowledge, threatened against Buyer which challenges the
transactions contemplated hereby or (b) the failure of Buyer, or, to Buyer's
knowledge, any employee or agent of Buyer to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by it hereunder and (c) the occurrence of any event that would
entitle Seller to terminate this Agreement pursuant to Section 12.1.
6.1.2 No Inconsistent Action. Buyer shall not take any
action which is materially inconsistent with its obligations under this
Agreement.
6.1.3 Post-Closing Access. Buyer, for a period of seven
years following the Closing Date, shall make available during normal business
hours for audit and inspection by Seller and its representatives, for any
reasonable purpose and upon reasonable notice, all records, files, documents
and correspondence of the Companies relating to the pre-Closing period. During
such seven-year period, Buyer shall at no time dispose of or destroy any such
records, files, documents and correspondence without giving 30 days prior
notice to Seller to permit Seller, at its expense, to examine, duplicate or
take possession of and title to
31
40
such records, files, documents and correspondence. All information, records,
files, documents and correspondence made available or disclosed under this
Section 6.1.3 shall be kept confidential.
6.1.4 Satisfaction of Conditions; Closing. Buyer shall use
all commercially reasonable efforts to conduct its business in such a manner
that on the Closing Date the representations and warranties of Buyer contained
in the Agreement shall be true in all material respects as though such
representations and warranties were made on and as of such date. Buyer shall
cooperate with Seller and the Companies and use commercially reasonable efforts
to satisfy promptly all conditions required hereby to be satisfied by Buyer in
order to expedite the consummation of the transactions contemplated hereby.
6.1.5 Response to Certain Actions. Buyer agrees to
cooperate and use its commercially reasonable efforts to contest and resist any
action, including administrative or judicial action, and make reasonable
attempts to have vacated, lifted, reversed or overturned any decree, judgment,
injunction or other order, whether temporary, preliminary or permanent, that is
in effect and that restricts, prevents or prohibits the consummation of the
transactions contemplated by this Agreement and Buyer agrees to take the
actions described (under the circumstances so described) in Schedule 6.1.5.
ARTICLE 7
JOINT COVENANTS
Buyer, Seller and the Companies covenant and agree that, pending the
Closing and except as otherwise agreed to in writing, they shall act in
accordance with the following:
7.1 FCC Applications. Buyer, Seller and the Companies shall
prosecute the FCC Applications with all reasonable diligence and otherwise use
their commercially reasonable efforts to obtain the FCC Consent as
expeditiously as practicable, but none of Buyer, the Companies or Seller shall
have any obligation to satisfy complainants or the FCC by taking any steps
which would have a material adverse effect upon Buyer, the Companies or Seller
(other than Buyer's obligations under Section 6.1.5). Notwithstanding anything
to the contrary contained herein, Buyer or Seller may terminate this Agreement
upon notice to the other, if, for any reason, other than Buyer's failure to
comply with Section 6.1.5 (in which case only Seller can terminate), the FCC
Applications are designated for hearing by the FCC; provided, however, that
notice of termination must be given within 20 days after release of the hearing
designation order and that the party giving such notice is not in default and
has otherwise complied with its obligations under this Agreement. Upon
termination
32
41
pursuant to this Section 7.1, the parties shall be released and discharged from
any further obligation hereunder without being subject to a claim by Seller for
liquidated damages or for any other claims for damages.
7.2 Confidentiality. Each of Buyer, Seller and the Companies
shall keep confidential all information obtained by it with respect to the
other parties hereto in connection with this Agreement and the negotiations
preceding this Agreement, including, without limitation, the results of, and
information relating to, the Studies (as defined in Section 7.6), and will use
such information solely in connection with the transactions contemplated by
this Agreement, and if the transactions contemplated hereby are not consummated
for any reason, each shall return to each other party hereto, without retaining
a copy thereof, any schedules, documents or other written information obtained
from such other party in connection with this Agreement and the transactions
contemplated hereby except to the extent required or useful in connection with
any claim made with respect to the transactions contemplated by this Agreement
or the negotiation thereof which will be returned following settlement of the
claim. Notwithstanding the foregoing, no party shall be required to keep
confidential or return any information which (a) is known or available through
other lawful sources, not bound by a confidentiality agreement with the
disclosing party, or (b) is or becomes publicly known through no fault of the
receiving party or its agents, or (c) is required to be disclosed pursuant to
an order or request of a judicial or government authority (provided the
non-disclosing party is given reasonable prior notice such that it may seek, at
its expense, confidential treatment of the information to be disclosed), (d) is
developed by the receiving party independently of the disclosure by the
disclosing party or (e) is required to be disclosed under applicable law or
rule, as determined by counsel for the receiving party.
7.3 Cooperation. Buyer, Seller and the Companies shall cooperate
fully with one another in taking any actions, including 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; provided, however, that no party shall be required to take any
action which would have a material adverse effect upon it.
7.4 Public Announcements. None of Buyer, Seller or the Companies
shall issue any press release or make any disclosure with respect to the
transactions contemplated by this Agreement without the prior written approval
of the other party, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any securities exchange or
the Nasdaq National Market or any stock exchange or Nasdaq National Market
regulations in which case Buyer, Seller or the Companies, as the case may be,
shall give notice to the other parties prior to making such disclosure.
33
42
7.5 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. Seller, Buyer and the Companies shall
submit to the United States Department of Justice and the United States Federal
Trade Commission ("FTC") not later than 15 business days after the date of this
Agreement all of the forms and information applicable to this transaction
required under the HSR Act and will use commercially reasonable efforts to
respond promptly to any request by them for additional information. Buyer, the
Companies and Seller shall use commercially reasonable efforts (including the
filing of a request for early termination) to obtain the early termination of
the waiting period under the HSR Act. Seller shall reimburse Buyer for
one-half of the filing fees for Buyer's HSR Act filing.
7.6 Condition of Real Estate. Buyer may, at its sole expense,
conduct environmental studies, title examinations, and land surveys (the
"Studies") of the Real Estate provided all information received as a result of,
or in the course of, any of the Studies will be deemed confidential (subject to
Section 7.2). Seller and the Companies agree to cooperate with any reasonable
request of Buyer for a site assessment or site review concerning any
environmental, title or survey matter, including the making available of such
personnel of the Companies as Buyer may reasonably request, so long as such
activities do not unreasonably interfere with the conduct of the Companies'
businesses. At the discretion of Buyer, Buyer may arrange, at its sole
expense, for one or more independent contractors to conduct tests of the Real
Estate, including tests of air, soil (including surface and subsurface
materials), surface water and ground water, or any equipment or facilities
located thereon, in order to identify any present or past release or threatened
release of any hazardous substances. Such tests may be done at any time, or
from time to time, upon reasonable notice and under reasonable conditions,
which do not impede the performance of such tests. If Buyer notifies Seller
within 45 days of the date of this Agreement that the Studies disclose
potential Environmental Costs and Liabilities in excess of $100,000, or the
presence of Hazardous Materials at concentrations exceeding those allowed by
Environmental Laws, evidence encroachments that materially and adversely affect
the use (for the purpose currently used) of the Real Estate, or any other
matters that materially affect the title, value or use of the Real Estate,
Seller shall promptly commence remedial action at its expense to cure the
condition giving rise to such matter and attempt to cure such condition prior
to the Closing; provided that Seller shall not be obligated to spend (but may
choose to spend) more than $100,000 in the aggregate in its attempts to cure
all such conditions. Seller shall notify Buyer within 30 days after its
receipt of Buyer's Studies if it determines that it is unable to cure such
conditions for $100,000 or less and chooses not to attempt to cure such
conditions, in which case Buyer may elect, within 30 days after Buyer's receipt
of Seller's notice that it chooses not to attempt to cure such conditions (a)
to terminate this Agreement or (b) to waive such obligations and receive a
$100,000 credit at the Closing. If this Agreement is terminated in accordance
with the immediately preceding sentence, no party shall have any liability to
the
34
43
other with respect to such termination. Either party may extend the Closing by
not more than 30 days if either reasonably determines that any necessary
remedial action can be completed during such period.
7.7 Employee Benefits Matters.
(a) As of the Closing Date, Buyer shall permit each
employee of the Companies who has an account balance under the Seller's 401(k)
Plan (as hereinafter defined) (a "Participant") to rollover (whether by direct
or indirect rollover, as selected by such Participant), at any time, his or her
"eligible rollover distribution" (as defined under Section 402(c)(4) of the
Code) from the 401(k) plan in which the Companies are participating employers
(the "Seller's 401(k) Plan") to a retirement plan maintained by Buyer that is
qualified under Section 401(a) of the Code and contains a cash or deferred
feature under Section 401(k) of the Code ("Buyer's 401(k) Plan"). Buyer's
401(k) Plan shall not impose any waiting periods, service requirements or other
limitations that would prohibit any Participant from rolling over an eligible
rollover distribution from Seller's 401(k) Plan, at any time, into Buyer's
401(k) Plan following the Closing Date. Seller and Buyer shall cooperate with
each other (and cause the trustees of Seller's 401(k) Plan and Buyer's 401(k)
Plan to cooperate with each other) with respect to the rollover of the
distributions to the Participants.
(b) Seller shall be responsible for providing
continuation coverage pursuant to Section 601 et seq. of ERISA and Section
4980B of the Code ("COBRA Coverage") to the current and former employees of the
Companies and their beneficiaries who have elected COBRA coverage prior to the
Closing Date. Buyer shall be responsible for COBRA Coverage to the current and
former employees of the Company and their beneficiaries who experience a
"qualifying event" (as defined in Section 4980B of the Code) prior to, on, or
after the Closing Date but who have not elected COBRA Coverage prior to the
Closing Date. Buyer shall cause its health plan(s) (A) to waive any
pre-existing condition exclusions, evidence of insurability provisions and
waiting periods (except to the extent that such exclusions would have then
applied or waiting periods were not satisfied under Seller's health plan(s));
and (B) to credit or otherwise consider any monies paid or accrued under
Seller's health plan(s), by employees of the Companies prior to the Closing
Date toward any deductibles, co-pays or other maximums under Buyer's health
plan(s) during the first plan year in which the Closing Date occurs.
(c) Buyer shall cause each employee benefit plan or
compensation arrangement established, maintained or contributed to by Buyer,
the Companies or any of their Affiliates to grant full credit for all service
or employment with, or recognized by,
35
44
Seller, the Companies and any of their Affiliates for purposes of eligibility
and vesting with respect to any employee pension benefit plan, as defined in
Section 3(2) of ERISA, and, for purposes of eligibility and determining the
amount of any benefit with respect to any vacation program and any employee
welfare benefit plan, as defined in Section 3(1) of ERISA, including, without
limitation, any sick pay plan and severance plan.
(d) For purposes of this Section 7.7, "Affiliate" shall
mean an entity required to be aggregated as a single employer under Section 414
of the Code with respect to Seller, any of the Companies or Buyer, as the
context may require.
ARTICLE 8
CONDITIONS OF CLOSING BY BUYER
The obligations of Buyer hereunder, including, without limitation, the
obligation to close the transactions contemplated herein, are, at its option,
subject to satisfaction, at or prior to the Closing Date, of all of the
following conditions, any of which may be waived by Buyer:
8.1 Representations, Warranties and Covenants. Subject to the
provisions of this Section 8.1, all representations and warranties of Seller
and the Companies made in this Agreement or in any Exhibit, Schedule or
document delivered pursuant hereto, shall be true and correct in all material
respects as of the date hereof, on and as of the Commencement Date, if
applicable, and on and as of the Closing Date as if made on and as of that
date, except for changes expressly permitted by the terms of this Agreement and
except those given as of a specified date which must only be true and correct
as of such specified date. Notwithstanding anything herein to the contrary,
(i) a breach of Section 3.1.9 resulting from Buyer's breach of Section 6.1.5
shall not be deemed a breach of Section 3.1.9 by Seller and (ii) if the
Commencement Date has occurred, the conditions to Buyer's obligation to effect
the Closing shall not be deemed to have failed to be satisfied solely as the
result of the failure of the representations and warranties of Seller and the
Companies in Sections 3.1.7, 3.1.8(a), 3.1.9, 3.1.14, 3.1.17, 3.1.20 or 3.1.21
to be true and correct in all material respects as of the Closing Date if such
failure is caused by actions taken by Buyer pursuant to the TBA.
8.2 Compliance with Agreement. All of the terms, covenants and
conditions to be complied with and performed by Seller and the Companies on or
prior to the Closing Date shall have been complied with or performed in all
material respects.
36
45
8.3 Third Party Consents and Approvals. Seller and the Companies
shall have obtained all third-party consents and approvals, if any, required
for the transfer or continuance, as the case may be, of the Contracts
designated by an asterisk as "essential" on Schedule 3.1.17 (and contracts of a
similar nature that would have been marked as such on Schedule 3.1.17 had they
been in existence on the date of this Agreement).
8.4 Closing Certificates. Buyer shall have received a
certificate, dated as of the Closing Date, from Seller and the Companies,
executed by an executive officer of each of Seller and the Companies to the
effect of Sections 8.1 and 8.2.
8.5 Governmental Consents. (a) The FCC Consent shall have been
issued by the FCC without any conditions that would otherwise permit Buyer to
terminate this Agreement pursuant to Section 12.1(e), below, and the FCC
Consent shall have become a Final Order (as defined in Section 1.4).
(b) All applicable notification and waiting period
requirements under the HSR Act shall have been satisfied.
8.6 Adverse Proceedings. No injunction, order, decree or judgment
of any court, agency or other Governmental Entities shall have been rendered
against Seller, Buyer or either of the Companies which would render it
unlawful, as of the Closing, to effect the transactions contemplated by this
Agreement in accordance with its terms.
8.7 The Shares. Seller and the Companies shall have delivered or
caused to be delivered to Buyer, on the Closing Date, the stock certificates
evidencing the Shares, duly endorsed or accompanied by a duly executed stock
power assigning the shares to Buyer and otherwise in good form for transfer.
8.8 Indemnification and Escrow Agreement. Seller shall have
executed and delivered to Buyer the Indemnification and Escrow Agreement.
8.9 Release of Encumbrances. Evidence satisfactory to Buyer's
counsel of the payment or release of any and all Liens (other than Liens not
required to be released pursuant to the provisions of this Agreement).
8.10 Legal Opinions. Buyer shall have received an opinion of
Proskauer Rose LLP and Wiley, Rein & Fielding, each dated as of the Closing
Date, substantially in the form of Exhibits B-1 and B-2 hereto.
37
46
8.11 ▇▇▇▇▇▇▇ Money Letter of Credit. The ▇▇▇▇▇▇▇ Money Letter of
Credit (as defined in Section 11.3) shall have been returned to Buyer for
cancellation.
8.12 No Material Adverse Change. Since the date hereof, and prior
to the Commencement Date, there shall have been no material adverse change to
the financial condition or operating results of the Companies (other than as a
result of regulatory changes affecting the radio broadcasting industry
generally or general economic conditions); provided, however, that a material
decline in ratings and/or a material decline in revenues caused by any decline
in ratings occurring at any time prior to the Closing shall not be deemed to be
a material adverse change to the financial condition or operating results of
the Companies. Following the Commencement Date, there shall have been no
material adverse change to the financial condition or operating results of the
Companies that is caused by actions taken by Seller or the Companies following
the Commencement Date.
8.13 Resignation of Directors. The directors of the Companies
shall have resigned effective as of the Closing Date.
8.14 [Intentionally Omitted].
8.15 1445 Certificate. Seller shall have executed and delivered a
certificate, in a form reasonably satisfactory to Buyer, stating that Seller is
not a foreign person within the meaning of Section 1445 of the Code.
8.16 Credit Facility. Each of the Companies and the WINCO
Subsidiaries shall be released in full from all of their obligations and
liabilities under the Amended and Restated Credit Security and Pledge Agreement
dated as of August 15, 1988 among Seller, the Companies, the WINCO
Subsidiaries, WEBE Associates, WICC Associates, Media Management Partners and
Chemical Bank and Chemical Bank, as Agent, together with any amendments and any
successor agreements thereto (the "Credit Agreement"). Buyer (and the
Companies and the WINCO Subsidiaries after the Closing Date) shall have no
obligations or liabilities arising from or related to the Credit Agreement.
8.17 RP Radio Agreement. Each of the Companies and the WINCO
Subsidiaries shall be released in full from all of their obligations and
liabilities under the RP Radio Agreement and Buyer (and the Companies and the
WINCO Subsidiaries after the Closing Date) shall have no obligations or
liabilities arising from or related to the RP Radio Agreement.
38
47
8.18 Management Fees. The management fees of Seller accrued by
WINCO as of Closing shall have been paid in full by WINCO to Seller and no
further obligation of WINCO to Seller with respect to such management fees
shall be outstanding.
ARTICLE 9
CONDITIONS OF CLOSING BY SELLER
The obligations of Seller hereunder including, without limitation, the
obligation to close the transactions contemplated herein, are, at their option,
subject to the satisfaction, at or prior to the Closing Date, of all of the
following conditions any of which may be waived by Seller:
9.1 Representations, Warranties and Covenants. All
representations and warranties of Buyer made in this Agreement or in any
Exhibit, Schedule or document delivered pursuant hereto, shall be true and
correct in all material respects as of the date hereof and on and as of the
Closing Date as if made on and as of that date, except for changes expressly
permitted by the terms of this Agreement and except those given as of a
specified date which must only be true and correct as of such specified date.
9.2 Compliance with Agreement. All the terms, covenants, and
conditions to be complied with and performed by Buyer on or prior to the
Closing Date shall have been complied with or performed in all material
respects.
9.3 Certifications, etc. Seller shall have received a
certificate, dated as of the Closing Date, from Buyer, executed by an executive
officer of Buyer to the effect of Sections 9.1 and 9.2.
9.4 Governmental Approval. (a) The FCC Consent shall have been
issued by the FCC and shall have become a Final Order (as defined in Section
4.1).
(b) All applicable notification and waiting period
requirements under the HSR Act shall have been satisfied.
9.5 Adverse Proceedings. No injunction, order, decree or judgment
of any court, agency or other Governmental Entities shall have been rendered
against Buyer, Seller or either of the Companies which would render it
unlawful, as of the Closing, to effect the transactions contemplated by this
Agreement in accordance with its terms.
39
48
9.6 Opinions. Buyer shall have delivered to Seller an opinion of
Weil, Gotshal & ▇▇▇▇▇▇ LLP, dated as of the Closing Date, in the form of
Exhibit C hereto.
9.7 Indemnification and Escrow Agreement. Buyer shall have
executed and delivered to Seller the Indemnification and Escrow Agreement.
ARTICLE 10
TRANSFER TAXES; FEES AND EXPENSES
10.1 Expenses. Except as set forth in Sections 10.2 and, 10.3
below, each party hereto shall be solely responsible for all costs and expense
incurred by it in connection with the negotiation, preparation and performance
of and compliance with the terms of this Agreement; provided that all such
costs and expenses of the Companies shall be borne by the Seller.
10.2 Sales and Transfer Taxes. All sales, excise, use, transfer,
deed, duties, stamp, notary public and other similar taxes, duties and transfer
fees applicable to the transactions contemplated by this Agreement, including
fees to record assignments, shall be borne equally by Seller and Buyer. Buyer
and Seller agree to cooperate with each other and to file all necessary
documentation (including but not limited to, all Tax Returns) with respect to
all amounts in a timely manner.
10.3 Governmental Filing or Grant Fees. Any filing or grant fees
imposed by any governmental authority the consent of or filing with which is
required for the consummation of the transactions contemplated hereby,
including but not limited to, the FCC, the FTC, and the Department of Justice
shall be borne equally by Buyer and Seller.
ARTICLE 11
LIQUIDATED DAMAGES, SPECIFIC PERFORMANCE, LETTER OF CREDIT
11.1 Liquidated Damages. If this Agreement is terminated by Seller
pursuant to Sections 12.1(b)(ii) or 12.1(g) the parties agree and acknowledge
that Seller will suffer damages that are not practicable to ascertain.
Accordingly, in such event, Seller shall be entitled to the sum of $5,125,000
as liquidated damages (and not as a penalty), payable solely and exclusively by
drawing upon the ▇▇▇▇▇▇▇ Money Letter of Credit and through the delivery to
Seller, of the sum of $2,562,500 via wire transfer of immediately available
funds. The parties agree that the foregoing liquidated damages are reasonable
considering all the
40
49
circumstances existing as of the date hereof and constitute the parties' good
faith estimate of the actual damages reasonably expected to result from the
termination of this Agreement pursuant to Sections 12.1(b)(ii) or 12.1(g). In
such event, Buyer shall immediately instruct the ▇▇▇▇▇▇▇ Money Escrow Agent (as
hereinafter defined) to deliver the ▇▇▇▇▇▇▇ Money Letter of Credit to Seller to
permit it to draw upon the ▇▇▇▇▇▇▇ Money Letter of Credit and shall deliver to
Seller, via wire transfer of immediately available funds, the sum of
$2,562,500. Seller agrees that, to the fullest extent permitted by law, the
right to draw upon the ▇▇▇▇▇▇▇ Money Letter of Credit and to receive the
additional sum of $2,562,500 from Buyer as provided in this Section 11.1 shall
be its sole and exclusive remedy with respect to any damages whatsoever that
Seller may suffer or allege to suffer as a result of a termination pursuant to
Sections 12.1(b)(ii) or 12.1(g). Except for a termination pursuant to Sections
12.1(b)(ii) or 12.1(g) (for which the sole recourse of Seller shall be as
provided in this Section 11.1) or pursuant to Section 12.1(a) or 7.6 (for which
no party shall have any liability to the other), the termination of this
Agreement shall not relieve the parties for any liability or obligation
relating to their breaches of this Agreement occurring prior to such
termination.
11.2 Specific Performance. In addition to any other remedies which
Buyer may have at law or in equity, Seller hereby acknowledges that the Shares
are unique, and that the harm to Buyer resulting from a breach by Seller of its
obligations to sell the Shares to Buyer cannot be adequately compensated by
damages. Accordingly, Seller agrees that Buyer shall have the right to have
this Agreement specifically performed by Seller, provided that Buyer is not in
material breach of this Agreement, and hereby agrees, in such event, not to
assert any objections to the imposition of the equitable remedy of specific
performance by any court of competent jurisdiction.
11.3 Letter of Credit.
11.3.1 Concurrently with the execution of this Agreement,
Buyer shall deposit an original, irrevocable letter of credit, which shall be
in a form reasonably satisfactory to Buyer and Seller (the "▇▇▇▇▇▇▇ Money
Letter of Credit"), issued by The Toronto-Dominion Bank for the sum of
$2,562,500 with Key Trust Company of Ohio, N.A. (the "▇▇▇▇▇▇▇ Money Escrow
Agent") to be held in escrow in accordance with the ▇▇▇▇▇▇▇ Money Escrow
Agreement substantially in the form of Exhibit D hereto.
11.3.2 The ▇▇▇▇▇▇▇ Money Letter of Credit shall be held by
the ▇▇▇▇▇▇▇ Money Escrow Agent in accordance with the terms of the ▇▇▇▇▇▇▇
Money Escrow Agreement. Subject to satisfaction of the conditions to the
Seller's obligations set forth in
41
50
Article 9, at the Closing, Seller shall instruct the ▇▇▇▇▇▇▇ Money Escrow Agent
to release and return the ▇▇▇▇▇▇▇ Money Letter of Credit to Buyer for
cancellation.
11.3.3 If this Agreement is terminated as provided in
Sections 12.1(b)(ii) or 12.1(g), Buyer shall instruct the ▇▇▇▇▇▇▇ Money Escrow
Agent to release the ▇▇▇▇▇▇▇ Money Letter of Credit to Seller, all as provided
in Section 11.1. In all other events, Seller shall join in instructions to the
▇▇▇▇▇▇▇ Money Escrow Agent to return the ▇▇▇▇▇▇▇ Money Letter of Credit to
Buyer.
ARTICLE 12
TERMINATION RIGHTS
12.1 Termination. This Agreement may be terminated at any time
prior to Closing as follows:
(a) by the mutual consent of Buyer and Seller;
(b) by written notice of (i) Buyer to Seller if Seller or
either of the Companies breaches in any material respect any of their
representations or warranties or defaults in any material respect in
the observance or in the due and timely performance of any of their
covenants or agreements herein contained and such breach or default
shall not be cured within thirty (30) days of the date of notice of
breach or default served by Buyer or (ii) Seller or either of the
Companies to the Buyer if Buyer breaches in any material respect any
of its representations or warranties or default in any material
respect in the observance or in the due and timely performance of any
of its covenants or agreements herein contained and such breach or
default shall not be cured within thirty (30) days of the notice of
breach or default served by Seller or the Companies;
(c) by Buyer, Seller or the Companies by written notice
to the other, if a court of competent jurisdiction or other
Governmental Entity shall have issued an order, decree or ruling or
taken any other action (which order, decree or ruling the parties
hereto shall use their best efforts to lift), in each case permanently
restraining, permanently enjoining or otherwise prohibiting the
transactions contemplated by this Agreement, and such order, decree,
ruling or other action shall have become final and nonappealable;
provided that Buyer shall not have the right to terminate this
Agreement pursuant to Section 12.1(c) unless Buyer has satisfied the
covenants contained in Section 6.1.5 hereof;
42
51
(d) by the party whose qualifications are not at issue,
if, for any reason, the FCC denies or dismisses any of the FCC
Applications and the time for reconsideration or court review under
the Communications Act with respect to such denial or dismissal has
expired and there is not pending with respect thereto a timely filed
petition for reconsideration or request for review;
(e) by written notice of Buyer to Seller if the FCC
Consent contains a condition on Buyer that (i) is unrelated to Buyer's
qualifications, (ii) could reasonably be expected to have a materially
adverse impact on the financial condition or business operations of
the Station, and (iii) the time for reconsideration or court review
under the Communications Act with respect to such condition(s) has
expired without the filing with respect thereto of a timely petition
for reconsideration or request for review;
(f) by written notice of Buyer to Seller, or by Seller to
the Buyer, if the Closing shall not have been consummated on or before
June 1, 1999, subject to extensions as provided in Sections 7.6 and
13.1; or
(g) by written notice of Seller to Buyer, if by May 31,
1999 all of the conditions of Closing by Buyer identified in Article 8
have been satisfied other than the expiration of the applicable
waiting period requirements under the HSR Act.
Notwithstanding the foregoing, no party hereto may effect a termination hereof
if such party is in material default or breach of this Agreement.
ARTICLE 13
RISK OF LOSS
13.1 Risk of Loss. (a) The risk of loss or damage to the assets of
the Companies shall be upon Seller at all times prior to the Closing Date. In
the event of loss or damage, Seller shall promptly notify Buyer thereof (the
"Seller's Risk of Loss Notice") and if the lost or damaged assets of the
Companies are capable of being replaced or repaired for an aggregate amount
less than $100,000, then Seller shall, at its sole cost and expense, replace or
repair such assets of the Companies prior to the Closing Date or deliver to
Buyer at the Closing an amount in cash equal to the cost of replacement or
repair of such assets of the Companies, as mutually agreed in good faith by
Buyer and Seller. Notwithstanding the foregoing, if the amount required to
replace or repair such Station Assets exceeds $100,000, Seller may elect not to
replace or repair such assets of the Companies (which election must
43
52
be set forth in the Seller's Risk of Loss Notice), provided, however, that in
such event Buyer, at its option, may elect, within 30 days after its receipt of
the Seller's Risk of Loss Notice, to terminate this Agreement without either
party being subject to a claim by the other for liquidated damages or any other
claims/or damages, or waive any default or breach with respect to the loss or
damage and receive a $100,000 credit at Closing. Either party may extend the
Closing Date by up to 30 days in order to allow Seller and the Companies to
complete the repair or replacement.
(b) Each of the Companies shall use its commercially
reasonable efforts to avoid the Station being off the air for three or more
consecutive days or five or more days in any 30 day period. The Companies
shall give prompt written notice to Buyer if either of the following (a
"Specified Event") shall occur: (i) the regular broadcast transmissions of the
Station in the normal and usual manner are interrupted or discontinued for more
than thirty (30) minutes; or (ii) the Station is operated at less than its
licensed antenna height above average terrain or at less than ninety percent
(90%) of its licensed effective radiated power. If any Specified Event
persists for more than seventy- two (72) consecutive hours, or five or more
days, whether or not consecutive, during any period of thirty (30) consecutive
days, then Buyer may, at its option: (i) terminate this Agreement by written
notice given to Seller and the Companies not more than ten (10) days after the
expiration of such thirty (30) day period (without either party being subject
to a claim by the other for liquidated damages or any other claims for
damages); or (ii) proceed in the manner set forth in Section 13.1(a) above. In
the event of termination of this Agreement by Buyer pursuant to this Section
13.1, the parties shall be released and discharged from any further obligation
hereunder (without being subject to a claim by Seller or the Companies for
liquidated damages or any other claims for damages). With respect to Acts of
God which may adversely affect Station operations, Seller shall use its
commercially reasonable efforts to reinstate Station operations within 30 days
and shall have the Station operating at not less than seventy percent (70%) of
maximum authorized effective radiated power by the Closing Date.
(c) Resolution of Disagreements. If the parties are
unable to agree upon the extent of any loss or damage, the cost to repair,
replace or restore any lost or damaged property, the adequacy of any repair,
replacement, or restoration of any lost or damaged property, or any other
matter arising under this Section 13.1, the disagreement shall be referred to a
qualified consulting communications engineer mutually acceptable to Seller,
Buyer and the Companies who is a member of the Association of Federal
Communications Consulting Engineers, whose decision shall be final, binding
upon and non-appealable by the parties, and whose fees and expenses shall be
paid one-half by Seller and one-half by Buyer.
44
53
ARTICLE 14
MISCELLANEOUS PROVISIONS
14.1 Survival of Representations and Warranties. Except as to
representations and warranties contained in Section 3.1.1 which shall survive
the Closing indefinitely and Sections 3.1.14, 3.1.15 and 3.1.18 which shall
survive the Closing for a period of two years after the Closing Date (the
"Excepted Representations"), all representations and warranties made by Seller,
Buyer and the Companies in this Agreement, or pursuant hereto, shall survive
the consummation of the transactions contemplated in this Agreement for a
period of one year after the Closing Date, regardless of any investigation at
any time made by or on behalf of Buyer or Seller, and shall not be deemed
merged in any document or instrument executed or delivered at the Closing;
provided, however, that in the event the Closing occurs on or prior to January
4, 1999, all representations and warranties surviving for one year after the
Closing Date shall instead survive until December 31, 1999. Buyer's sole
remedies for any breach of representation or warranty (other than Section
3.1.1) or pre-Closing breach of a covenant or agreement shall be those set
forth in the Indemnification and Escrow Agreement.
14.2 Certain Interpretive Matters and Definitions. Unless the
context otherwise requires, (a) all references to Sections, Articles or
Schedules are to Sections, Articles or Schedules of or to this Agreement, (b)
each term defined in this Agreement has the meaning assigned to it, (c) each
accounting term not otherwise defined in this Agreement has the meaning
assigned to it in accordance with generally accepted accounting principles as
in effect on the date hereof, (d) "or" is disjunctive but not necessarily
exclusive, and (e) words in the singular include the plural and vice versa, and
(f) except with respect to Sections 3.1.15 and 7.7, the term "Affiliate" has
the meaning given it in Rule 12b-2 of Regulation 12B under the Securities
Exchange Act of 1934, as amended. All references to "$" or dollar amounts will
be to lawful currency of the United States of America.
14.3 Further Assurances. At and after the Closing, Seller shall
from time to time, at the request of and without further cost or expense to
Buyer, execute and deliver such other instruments of assignment, conveyance and
transfer and take such other actions as may reasonably be requested in order to
more effectively consummate the transactions contemplated hereby.
14.4 Financial Statements. At all times after the date hereof,
Seller and the Companies shall, and shall cause their representatives
(including their independent public accountants) to, cooperate in all
reasonable respects with the efforts of Buyer and their independent auditors to
prepare such audited and interim unaudited financial statements of the
45
54
Companies as Buyer may reasonably determine are necessary in connection with
any filing required to be made by it or any of its Affiliates under the
Exchange Act of 1934, as amended (the "Exchange Act"), or the Securities Act.
Seller and the Companies shall execute and deliver to Buyer's independent
accountants such customary management representation letters as they may
require as a condition to their ability to sign an unqualified report upon the
audited financial statements of the Companies for the periods for which such
financial statements are required under the Exchange Act or the Securities Act.
Seller and the Companies shall cause their independent public accountants to
make available to Buyer and its representatives all of their work papers
related to the financial statements or Tax Returns of Seller (to the extent
they relate to the Station) and the Companies and to provide Buyer's
independent public accountants with full access to those personnel who
previously have been involved in the audit or review of Seller's and the
Companies' financial statements or Tax Returns. Any reasonable out-of-pocket
costs incurred by Seller in connection with Seller's obligations under this
Section 14.4 shall be promptly reimbursed by Buyer upon Buyer's receipt of
reasonably detailed information regarding such costs.
14.5 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, whether by operation of law or otherwise; provided, however, that
without releasing Buyer from any of its obligations or liabilities hereunder
(a) nothing in this Agreement shall limit Buyer's ability to sell or transfer
any or all of its respective assets (whether by sale of stock or assets, or by
merger, consolidation or otherwise) without the consent of Seller or the
Companies, (b) nothing in this Agreement shall limit Buyer's ability to assign
the Shares (including the right to acquire the Shares at the Closing) to any
Affiliate of Buyer without the consent of Seller or the Companies, and (c)
nothing in this Agreement shall limit Buyer's ability to make a collateral
assignment of its rights under this Agreement to any institutional lender that
provides funds to Buyer without the consent of Seller or the Companies. Seller
and the Companies shall execute an acknowledgment of such assignment(s) and
collateral assignments in such forms as Buyer or its institutional lenders may
from time to time reasonably request; provided, however, that unless written
notice is given to Seller and the Companies that any such collateral assignment
has been foreclosed upon, Seller and the Companies shall be entitled to deal
exclusively with Buyer as to any matters arising under this Agreement or any of
the other agreements delivered pursuant hereto. In the event of such an
assignment, the provisions of this Agreement shall inure to the benefit of and
be binding on Buyer's successors and assigns.
46
55
14.6 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.
14.7 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.
14.8 Governing Law. The construction and performance of this
Agreement shall be governed by the laws of the State of New York without giving
effect to the choice of law provisions thereof.
14.9 Notices. Any notice, demand or request required or permitted
to be given under the provisions of this Agreement shall be in writing and
shall be deemed to have been duly delivered and received when electronically
confirmed if sent by facsimile; 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 and shall be addressed to the
following addresses (or at such other address which party shall specify to the
other party in accordance herewith):
(a) In the case of Seller, to:
ML Media Partners L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
47
56
(b) In the case of Buyer:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
14.10 Schedules. The schedules and exhibits attached to this
Agreement and the other documents delivered pursuant hereto are hereby made a
part of this Agreement as if set forth in full herein.
14.11 Entire Agreement. This Agreement contains the entire
agreement among the parties hereto with respect to its subject matter and
supersedes all negotiations, prior discussions, agreements, letters of intent,
and understandings, written or oral, relating to the subject matter of this
Agreement.
48
57
14.12 Severability. If any provision of this Agreement is held to
be unenforceable, invalid, or void to any extent for any reason, that provision
shall remain in force and effect to the maximum extent allowable, and the
enforceability and validity of the remaining provisions of this Agreement shall
not be affected thereby.
14.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
14.14 No Third-Party Rights. Nothing in this Agreement, express or
implied, shall be construed to confer upon any person, other than the parties
hereto, their successors and permitted assigns, any legal or equitable rights,
remedies, claims, obligations or liabilities under or by reason of this
Agreement (other than as provided for in the Indemnification and Escrow
Agreement).
14.15 Arbitration. All disputes which cannot be resolved by
agreement of the parties shall be arbitrated in Washington, D.C. in accordance
with the rules of the American Arbitration Association before a single
arbitrator who shall be jointly selected by Seller and Buyer, or if Seller and
Buyer cannot agree on the selection of such arbitrator, such arbitrator shall
be selected by the head of the Washington, D.C. Office of the American
Arbitration Association. The costs of such arbitrator shall be paid by Seller
and Buyer in such proportion as the arbitrator deems equitable based on the
relative merits of the positions of the parties.
[The remainder of this page is intentionally left blank]
49
58
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed and delivered as of the first above written.
SELLER:
ML MEDIA PARTNERS, L.P.
By: Media Management Partners, its general partner
By: RP Media Management, its general partner
By: IMP Media Management, Inc.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Vice President
THE COMPANIES:
WINCOM BROADCASTING CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
WIN COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
59
BUYER:
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
60
EXHIBIT A - WINCOM ACQUISITION
INDEMNIFICATION AND ESCROW AGREEMENT
THIS INDEMNIFICATION AND ESCROW AGREEMENT (this "Agreement")
is made and entered into as of this ____ day of ______________, _____, by and
among Chancellor Media Corporation of Los Angeles, a Delaware corporation
("Buyer"), ML Media Partners L.P., a Delaware limited partnership ("Seller"),
and Key Trust Company of Ohio, N.A., as escrow agent ("Agent").
RECITALS
A. Pursuant to that certain Stock Purchase Agreement, dated as of
August 11, 1998, by and among Buyer, WIN Communications, Inc. ("WINCO"), WINCOM
Broadcasting Corporation ("WINCOM" and, together with WINCO, the "Companies")
and Seller (the "Stock Purchase Agreement"), Buyer has agreed to acquire from
Seller, and Seller has agreed to sell to Buyer, all of the Shares (as defined
in the Stock Purchase Agreement).
B. It is a condition precedent to the closing of the transactions
contemplated by the Stock Purchase Agreement (the "Closing"), that Buyer,
Seller and Agent execute and deliver this Agreement.
C. Buyer and WINCO have entered into a Time Brokerage Agreement
(the "TBA"), pursuant to which, following the expiration or termination of the
applicable waiting period under the HSR Act, Buyer will purchase substantially
all of the broadcast time of radio station WQAL 104.1 FM (the "Station"),
subject to the rules and policies of the Federal Communications Commission.
D. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings assigned to them in the Stock Purchase Agreement.
AGREEMENTS
In consideration of the recitals and of the respective
agreements and covenants contained herein, and intending to be legally bound
hereby, the parties agree as follows:
61
ARTICLE I
Section 1.1 Funds. (a) At the Closing, and only if the Closing
occurs, Buyer shall place in an escrow account with Agent (the "Account") the
sum of $2,500,000 out of the Purchase Price paid pursuant to Section 1.2 of the
Stock Purchase Agreement (the "Funds").
(b) The Funds shall be held by Agent in the Account for
the benefit of Buyer and Seller as provided in this Agreement. In no event
shall Agent disburse or invest the Funds except in accordance with this
Agreement.
Section 1.2 Acceptance of Appointment as Agent. Agent, by signing
this Agreement, accepts the appointment as Agent and agrees to hold and deliver
the Funds and make disbursements from the Account in accordance with the terms
of this Agreement.
Section 1.3 Distribution of Funds to Buyer Indemnitees. Agent shall
disburse to Buyer (for its own account or for the account of any Buyer
Indemnitee, as defined in Section 2.1) such portion of the Funds as may be
necessary to pay the Damages (as defined in Section 2.1) for which a Buyer
Indemnitee is entitled to reimbursement under Section 2.1, 2.2, 2.3 or 2.4.
Payment shall be made not more than three (3) business days after (i) the
delivery to Agent of written instructions signed by Buyer and Seller,
specifying an amount to be paid to a Buyer Indemnitee, or (ii) the delivery to
Agent and Seller of a copy of a Final Determination (as defined below)
establishing a Buyer Indemnitee's right to reimbursement under this Agreement
with respect to such Damages. A "Final Determination" shall mean a judgment of
a court of competent jurisdiction having the authority to determine the amount
of, and liability with respect to, the determined item, which judgment is not
subject to appeal, reconsideration or review. Agent, at its option, shall be
entitled to seek and, if received, rely conclusively upon an opinion of legal
counsel to the effect that the judgment delivered to Agent pursuant to this
Section 1.3 (or pursuant to Section 1.6(b)) is a Final Determination.
Section 1.4 Investment of Funds. (a) Pending disbursement of the
Funds, Agent shall invest the Funds in Permitted Investments (as defined
below). For purposes of this Agreement, "Permitted Investments" shall mean
direct obligations of the U.S. government having maturities of 180 days or
less, money market funds that invest solely in direct obligations of the U.S.
government, including, without limitation, the Victory U.S. Obligation Fund,
and such other investments as may be specified from time to time by joint
written agreement between Buyer and Seller. As and when any payment is to be
made from the Funds or the Funds are to be otherwise disbursed under this
Agreement, Agent shall cause a sufficient portion of the Permitted Investments
to be converted into cash. Agent shall select the investments or types of
investments to be so converted. Neither Buyer nor Seller shall be liable for
any loss of principal or income due to the choice of Permitted Investments
2
62
in which the Funds are invested or the choice of Permitted Investments
converted into cash pursuant to this paragraph (a).
(b) For Tax purposes, the Funds shall be property of
Seller and all interest, dividends and other income earned on the Funds
(collectively, the "Earnings") shall be the income of Seller and be distributed
to Seller following the Expiration Date, as hereinafter defined. Buyer and
Seller shall file Tax Returns consistent with such treatment.
Section 1.5 No Distribution of Expenses. Except as provided in
Sections 2.1, 2.2, 2.3 and 2.4 of this Agreement, neither Buyer nor Seller
shall be entitled to reimbursement out of the Funds or from any alternative
recovery for any costs and expenses incurred by them in connection with
exercising their rights or performing their duties under this Agreement.
Section 1.6 Segregation of the Funds. (a) Notwithstanding any other
provision of this Agreement to the contrary, Agent shall segregate from the
Account and transfer into a separate sub-account (the "Pending Claim Account")
maintained by Agent for the benefit of Buyer and Seller the portion of the
Funds that may be necessary to satisfy in full all Pending Claims (as defined
below) and shall hold such portion in accordance with this Section 1.6;
provided, however, that Agent shall not so segregate from the Account and
transfer to the Pending Claim Account the Funds that may be necessary to
satisfy Pending Claims hereunder until such time as the aggregate amount of
Damages asserted by Buyer and any Buyer Indemnitees hereunder, taken as a
whole, exceeds the Indemnification Basket (as defined in Section 3.1(a)).
"Pending Claims" shall mean unresolved claims for indemnification under Section
2.1, 2.2, 2.3 or 2.4 that are the subject of Claim Notices (as defined in
Section 2.7).
(b) Any portion of the Funds segregated under Section
1.6(a) shall continue to be segregated by Agent until released thereafter to
Seller in accordance with Section 1.7 or until Agent is directed to release
such Account by (i) written instructions signed by Buyer, that are agreed to in
writing by Seller, or (ii) a copy of a Final Determination establishing a Buyer
Indemnitee's right to receive such Funds as reimbursement for indemnification
claims under Article 2, or establishing Seller's right to receive such Funds.
Section 1.7 Distribution of Funds to Seller. (a) Within three
business days after the first anniversary of the Closing, Agent shall
distribute to Seller from the Funds an amount equal to (i) $1,500,000 less (ii)
the sum of (x) the total Funds previously paid to any Buyer Indemnitees under
Section 1.3 plus (y) the total funds that are then being segregated with
respect to Pending Claims under Section 1.6(a). Any amounts not so released
shall continue to be held by Agent until either released thereafter as provided
in Section 1.6(b) or released thereafter to Seller as provided in Section
1.7(b).
3
63
(b) Within three business days after the Expiration Date
(as defined below), Agent shall distribute to Seller from the Account an amount
equal to the Earnings and the then remaining amount of Funds less the total
amount of Funds that are then being segregated with respect to Pending Claims
under Section 1.6. "Expiration Date" shall mean two years after the Closing
Date. Any amounts segregated as of the Expiration Date with respect to Pending
Claims shall be released thereafter as provided in Section 1.6(b).
ARTICLE II
INDEMNIFICATION CLAIMS
Section 2.1 Indemnification by Seller. From and after the Closing,
but subject to the conditions and limitations set forth in this Agreement,
Buyer and its respective successors and assigns (and, following the Closing,
the Companies) and their officers, directors, stockholders, employees and
agents (and each person who is an officer, director, stockholder, employee or
agent of the Companies following the Closing) (collectively, the "Buyer
Indemnitees") shall be entitled to reimbursement from Seller for any and all
losses, costs, damages, claims, fines, penalties, expenses (including, without
limitation, reasonable attorneys' fees and expenses), amounts paid in
settlement, court costs, out-of-pocket costs, costs of investigation, and
reasonable costs of litigation (including, without limitation, reasonable fees
and expenses of accountants, investment bankers and other experts)
(collectively, "Damages") actually incurred or suffered by a Buyer Indemnitee
or to which any of the Buyer Indemnitees may be subjected, to the extent
resulting from, arising out of, based on or relating to (a) any inaccuracy in
any representation or warranty of Seller or the Companies contained in the
Stock Purchase Agreement or in any schedule, instrument, exhibit, or
certificate delivered pursuant thereto (a "Related Document"), or (b) any
breach of any covenant or agreement of the Seller or the Companies contained in
the Stock Purchase Agreement (provided, in the case of any such breach by the
Companies, that such breach occurred at or prior to the Closing).
Section 2.2 Tax Indemnification. Without limiting the generality of
any of the foregoing, Seller shall indemnify and hold harmless Buyer
Indemnities from and against any and all Damages resulting from, arising out
of, based on or relating to, the Companies' liabilities for (i) all Taxes
attributable to taxable periods ending on or before the Closing Date or which
includes any or all days up to and including the Closing Date (collectively,
the "Pre-Closing Date Tax Liability") and (ii) any and all Taxes of any member
of a consolidated, combined or unitary group of which either of the Companies
or the WINCO Subsidiaries (or any predecessor) is or was a member on or prior
to the Closing Date, by reason of the liability of either of the Companies or
the WINCO Subsidiaries pursuant to Treasury Regulation Section 1.1502-6(a) or
any analogous or similar state, local or foreign
4
64
law or regulation; if and to the extent that such liability exceeds Taxes
attributable to taxable periods ending on or before the Closing Date taken into
account in determining Liability Adjustment Amount or Working Capital Amount.
Damages shall not include any reduction in net operating loss carryforwards of
WINCOM and its subsidiaries.
Section 2.3 ERISA Indemnification. Without limiting the generality
of any of the foregoing, Seller shall indemnify and hold harmless Buyer
Indemnities, from and against any and all Damages resulting from or relating to
any claims of governmental entities, employees or other third parties relating
to or arising out of the following relating to any period prior to the Closing:
(i) any Employee Benefit Plan, maintained by, contributed
to, or obligated to contribute to by Seller, the Companies, or any
ERISA Affiliate, with respect to any (A) liability to the PBGC under
Title IV of ERISA; (B) liability relating to a multiemployer plan; (C)
liability with respect to non-compliance with the notice and benefit
continuation requirements of COBRA; (D) liability with respect to any
non-compliance with ERISA or any other applicable laws; or (E)
liability with respect to any suit, proceeding or claim which is
brought against Buyer, any Employee Benefit Plan or any fiduciary or
former fiduciary of any such Employee Benefit Plan;
(ii) the employment or termination of employment,
including a constructive termination, by Seller, the Companies or any
of their Affiliates of any individual (including, but not limited to,
any employee of Seller, the Companies or any of their Affiliates)
attributable to any actions or inactions occurring prior to the
Closing;
(iii) any claims by any employee of Seller, the Companies
or any of their Affiliates for workers' compensation and/or related
medical benefits incurred after the Closing which relate to any injury
or illness during their employment by Seller, the Companies or any of
the Affiliates;
(iv) WARN or any other statutory or common law or civil
law notice, severance pay, termination pay in lieu thereof or damages
arising as a result of the termination or dismissal (including
constructive termination or dismissal), by the Companies or any of its
Affiliates of any or all Employees of the Companies prior to the
Closing; and
(v) any claim of discrimination against the Companies or
any of its Affiliates in hiring, management or termination or
dismissal of any individual or group of individuals by the Companies
or any of its Affiliates (including constructive termination or
dismissal) which occurred or is alleged to have occurred during their
employment by Seller, the Companies or any of their Affiliates.
5
65
Notwithstanding the foregoing, Seller shall have no liability with respect to
the termination of any employee during the term of the TBA at the request of
Buyer.
Section 2.4 Additional Indemnification by Seller. Without limiting
the generality of any of the foregoing, Seller shall indemnify and hold
harmless the Buyer Indemnities from and against any and all Damages resulting
from, arising out of, based on or relating to:
(i) any actual or asserted obligations or liability of
the Companies or any subsidiary (whether for indemnification or
otherwise) under any agreement entered into prior to the Closing
related to the sale of any securities, assets, properties, operations
or businesses of the Companies or any subsidiary;
(ii) any civil, criminal or administrative action, suit,
claim, hearing, investigation or proceeding (including but not limited
to any counterclaims or crossclaims), relating to the Companies or any
subsidiary arising out of or based upon or with respect to any
condition existing or action or event occurring prior to the Closing
Date, whether or not pending or threatened on the date hereof or at
the Closing, and whether brought, made or instigated by any
Governmental Entity or any private person (other than any of the
foregoing caused by actions taken by Buyer pursuant to the TBA); or
(iii) any of the WINCO Subsidiaries.
Section 2.5 Indemnification by Buyer. From and after the
Closing, but subject to the conditions and limitations set forth in this
Agreement, Seller and its respective successors and assigns, and its officers,
directors, stockholders, employees and agents (collectively, the "Seller
Indemnitees") shall be entitled to reimbursement from the Buyer for any and all
Damages actually incurred or suffered by a Seller Indemnitee, or to which any
of the Seller Indemnitees may be subjected, to the extent resulting from,
arising out of, based on or relating to (a) any inaccuracy in any
representation or warranty of Buyer contained in the Stock Purchase Agreement
or in any Related Document, (b) any breach of any covenant or agreement of the
Buyer contained in the Stock Purchase Agreement or (c) the operations of the
businesses of the Companies or the ownership of the Companies' assets following
the Closing Date (except to the extent any such Damages relating to such
operations or ownership following the Closing Date arise from any matter with
respect to which any Buyer Indemnitee is entitled to indemnification under
Section 2.1, 2.2, 2.3 and/or 2.4).
Section 2.6 Procedures Regarding Third Party Claims. (a) In the
event that any person entitled to indemnification under this Article 2 (the
"Indemnified Party") becomes aware of any matter with respect to which it
believes it is entitled to indemnification under this Article 2 from Buyer or
Seller, as applicable (the "Indemnifying Party"), and such
6
66
matter involves (i) any claim made against the Indemnified Party by any party
other than a party to the Stock Purchase Agreement or (ii) the commencement of
any action, suit, investigation, arbitration or similar proceeding against the
Indemnified Party by any party other than a party to the Stock Purchase
Agreement (a "Third Party Claim"), the Indemnified Party shall notify the
Indemnifying Party in writing with reasonable promptness of such Third Party
Claim, specifying, to the extent known, the nature, circumstances and the
amount of such Third Party Claim (a "Third Party Claim Notice") accompanied by
all correspondence, documents, pleadings or other writings received with
respect to such Third Party Claim. Failure to give such reasonably prompt
notice shall not relieve the Indemnifying Party of its obligations under this
Article 2, except to the extent the Indemnifying Party is materially prejudiced
thereby. The Indemnifying Party shall have ten (10) business days from its
receipt of a Third Party Claim Notice (the "Third Party Claim Notice Period")
to notify the Indemnified Party (and if Seller is the Indemnifying Party and
any Funds continue to be held by Agent, Agent as well) (i) whether the
Indemnifying Party disputes the Indemnified Party's right of indemnification,
and (ii) if the Indemnifying Party does not dispute such right of
indemnification, whether or not it desires to defend the Indemnified Party
against such Third Party Claim.
(b) If the Indemnifying Party notifies the Indemnified
Party (and if Seller is the Indemnifying Party and any Funds continue to be
held by Agent, Agent as well) in writing within the Third Party Claim Notice
Period that (i) the Indemnifying Party does not dispute the Indemnified Party's
right of indemnification and (ii) the Indemnifying Party desires to defend
against such Third Party Claim, then the Indemnifying Party shall have the
right to assume and control, at its sole cost, expense and liability, the
defense of such Third Party Claim by appropriate proceedings with counsel
reasonably acceptable to the Indemnified Party. The Indemnified Party may
participate in any such defense or settlement, at its sole cost and expense.
(c) If (i) the Indemnifying Party disputes the
Indemnified Party's right of reimbursement with respect to a Third Party Claim,
(ii) the Indemnifying Party does not dispute such right of reimbursement but
fails to promptly assume and prosecute the defense of such Third Party Claim,
or (iii) the Indemnified Party reasonably believes that a conflict of interest
exists between the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to assume and control (at the Indemnifying
Party's sole cost, expense and liability) the defense of such Third Party Claim
with counsel reasonably acceptable to Indemnifying Party. If the Indemnifying
Party does not assume the defense of a Third Party Claim for any reason, it may
still participate in, but not control, the defense of such Third Party Claim at
the Indemnifying Party's sole cost and expense.
7
67
(d) The party responsible for the defense of any Third
Party Claim (the "Responsible Party") shall, to the extent reasonably requested
by the other party, keep such other party informed as to the status of any
Third Party Claim for which such other party is not the Responsible Party,
including, without limitation, all settlement negotiations and offers. Each
party shall make available to the other party and its representatives
(including accountants and counsel) all books and records of such party
relating to such Third Party Claim and shall render to each other such
assistance and access to the books and records that they may reasonably require
of each other in order to ensure the proper and adequate defense of such Third
Party Claim, including, without limitation, making employees available (upon
reasonable advance notice and with due regard for prior scheduling commitments)
to testify in any proceeding, pretrial deposition or otherwise, except that
unless required to do so by valid governmental or judicial order or legal
process, a party shall not be required to make available to the other party any
books, records, documents or other information that such party reasonably
determines to be confidential or subject to attorney-client privilege until the
other party shall have entered into such agreements as is reasonably necessary
in light of all the surrounding circumstances to protect such confidentiality
or privilege.
(e) Neither the Indemnified Party nor the Indemnifying
Party shall enter into any settlement of any Third Party Claim without the
prior written consent of the other party (which shall not be unreasonably
withheld or delayed). The Responsible Party shall promptly notify the other
party of each settlement offer (including whether or not the Responsible Party
is willing to accept the proposed settlement offer) with respect to a Third
Party Claim. Such other party agrees to notify the Responsible Party with
reasonable promptness whether or not such party is willing to accept the
proposed settlement offer.
Section 2.7 Procedures Regarding Direct Claims. In the event that an
Indemnified Party has a claim for reimbursement which does not involve a Third
Party Claim (a "Direct Claim"), the Indemnified Party shall notify the
Indemnifying Party (and if Seller is the Indemnifying Party and any Funds
continue to be held by Agent, Agent as well) with reasonable promptness,
specifying, to the extent known, the nature, circumstances and amount of such
Direct Claim (a "Direct Claim Notice" and together with Third Party Claim
Notices, the "Claim Notices"), including with particularity the specific
representation and warranty or covenant and agreement alleged to have been
breached and the manner in which such representation and warranty or covenant
and agreement is alleged to have been breached. Failure to give such
reasonably prompt notice shall not relieve the Indemnifying Party of its
obligations under this Article 2, except to the extent the Indemnifying Party
is materially prejudiced thereby. If the Indemnifying Party notifies the
Indemnified Party that it disputes the Indemnified Party's right of
reimbursement with respect to a particular Direct Claim, the Indemnified Party
and the Indemnifying Party shall use their reasonable efforts to negotiate a
resolution of such dispute promptly. Nothing herein shall be deemed to prevent
the Indemnified Party from initiating litigation under this Agreement, and
subject to the
8
68
limitations contained herein, against the Indemnifying Party with respect to
any Direct Claim disputed by the Indemnifying Party for the purpose of
obtaining a Final Determination in order to establish the Indemnified Party's
right to reimbursement hereunder.
ARTICLE III
LIMITATIONS ON LIABILITY
Section 3.1 Limitations on Reimbursement. (a) The Buyer Indemnitees
shall not be entitled to indemnification hereunder, unless and until aggregate
Buyer Indemnitees' Damages for which indemnification otherwise would be
available hereunder exceed $93,187 (the "Indemnification Basket"), in which
event the Buyer Indemnitees shall be entitled to reimbursement hereunder for
the amount of all such Damages (including the initial $93,187).
(b) Except with respect to indemnification pursuant to
Section 2.1(a) for the breach by Seller of any representation or warranty set
forth in Section 3.1.1 of the Stock Purchase Agreement (including any
bring-down of any such representation or warranty pursuant to any certificate
delivered at Closing), the right to reimbursement from the Funds shall
constitute the sole remedy of any Buyer Indemnitee with respect to any matter
for which such Buyer Indemnitee is entitled to indemnification under Section
2.1, 2.2, 2.3 and/or 2.4.
(c) Any claim by any Buyer Indemnitee for reimbursement
under Section 2.1(a) must be asserted within the period of survival, as set
forth in the Stock Purchase Agreement, of the representation or warranty with
respect to which such claim relates.
(d) After the Expiration Date, no Buyer Indemnitee may
assert any claim for reimbursement from the Funds.
(e) For all purposes of this Agreement, the amount of
Damages, and the amount reimbursable with respect thereto, shall be reduced to
the extent of any insurance proceeds or other third party recovery received by
the Indemnified Party with respect to such Damages. If the Indemnified Party
receives any such insurance proceeds or other recovery after the Indemnifying
Party shall have made any payment to the Indemnified Party with respect to such
Damages, the Indemnified Party shall promptly return such payment to the
Indemnifying Party to the extent of insurance proceeds or other recovery
received; provided, however, that any such payment returned to Seller prior to
the Expiration Date shall be placed in the Account and become part of the Funds
and such amount shall not be deemed to have been paid to any Indemnified Party
as Damages under this Agreement. The Indemnified Party shall timely file
claims for insurance proceeds and pursue all other
9
69
reasonable third party reimbursement rights with respect to any Damages
sustained by the Indemnified Party.
(f) An Indemnified Party's rights to reimbursement or
indemnification for Damages resulting from any untrue or incorrect
representation or warranty of the Indemnifying Party shall not be affected by
any investigation made by the Indemnified Party or whether or not the
Indemnified Party relied upon such untrue or incorrect representation or
warranty; provided, however, that no Indemnified Party shall be entitled to
reimbursement or indemnification for Damages resulting from an untrue or
incorrect representation or warranty of the Indemnifying Party if (i) the fact
that such representation or warranty was untrue or incorrect was disclosed in
writing to the Indemnified Party prior to the Closing (along with an
acknowledgment by the Indemnifying Party that the conditions to the Indemnified
Party's obligation to effect the Closing, as a result of the failure of such
representation or warranty to be true and correct, are not satisfied) and (ii)
the Indemnified Party nevertheless determines to effect the Closing.
ARTICLE IV
AGENT
Section 4.1 Rights and Responsibilities of Agent. (a) The duties
and responsibilities of Agent shall be limited to those expressly set forth in
this Agreement and it shall not be subject to, nor obligated to recognize, any
other agreement between, or direction or instruction of, the parties to this
Agreement, unless such agreement, direction or instruction is in writing and is
signed by both Buyer and Seller.
(b) If any controversy arises between the parties to this
Agreement, or with any other party, concerning the subject matter of this
Agreement, its terms or conditions, Agent will not be required to determine the
controversy or to take any action regarding it. Agent may hold all documents
and funds and may wait for settlement of any such controversy by final
appropriate legal proceedings or other means as, in Agent's discretion, Agent
may require, despite what may be set forth elsewhere in this Agreement. In
such event, Agent will not be liable for interest or damage. Furthermore,
Agent may, at its option, file an action of interpleader requiring the parties
to answer and litigate any claims and rights among themselves. Agent is
authorized to deposit with the clerk of the court all documents and funds held
in escrow. All costs, expenses, charges and reasonable attorney fees incurred
by Agent due to the interpleader action shall be paid one-half by Buyer and
one-half by Seller, in each case jointly and severally. Upon initiating such
action, Agent shall be fully released and discharged of and from all
obligations and liability imposed by the terms of this Agreement.
10
70
(c) In performing any duties under the Agreement, Agent
shall not be liable to any party for damages, losses, or expenses, except as a
result of gross negligence or willful misconduct on the part of Agent. Agent
shall not incur any such liability for any action taken or omitted in reliance
upon any instrument, including any written statement or affidavit provided for
in this Agreement that Agent shall in good faith believe to be genuine, nor
will Agent be liable or responsible for forgeries, fraud, impersonations, or
determining the scope of any representative authority. In addition, Agent may
consult with legal counsel in connection with Agent's duties under this
Agreement and shall be fully protected in any act taken, suffered, or permitted
by it in good faith in accordance with the advice of counsel. In the absence
of knowledge that any action taken or purported to be taken hereunder is
wrongful, Agent is not responsible for determining and verifying the authority
of any person acting or purporting to act on behalf of any party to this
Agreement.
(d) Agent, and any successor Agent, may resign at any
time as escrow agent hereunder by giving at least 30 days prior written notice
to Seller and Buyer. Upon such resignation and the appointment of a successor
escrow agent, the resigning Agent shall be absolved from any and all liability
in connection with the exercise of its powers and duties as escrow agent
hereunder except for liability arising in connection with its own gross
negligence or willful misconduct. Upon their receipt of notice of resignation
from Agent, Buyer and Seller shall use commercially reasonable efforts jointly
to designate a successor Agent. In the event Buyer and Seller do not agree
upon a successor escrow agent within 30 days after the receipt of such notice,
Agent so resigning may petition any court of competent jurisdiction for the
appointment of a successor Agent or other appropriate relief and any such
resulting appointment shall be binding upon all parties hereto. By mutual
agreement, Buyer and Seller shall have the right at any time upon not less than
10 days' prior written notice to Agent to terminate the appointment of Agent,
or successor Agent, as escrow agent hereunder. Agent or successor Agent shall
continue to act as escrow agent until a successor is appointed and qualified to
act as Agent.
Section 4.2 Fees and Expenses of Agent. Agent shall (a) be paid a
fee for its services under this Agreement as provided by Exhibit A and (b) be
entitled to reimbursement for reasonable expenses (including the reasonable
fees and disbursements of its counsel engaged pursuant to Sections 1.3 and/or
1.4 hereof, or otherwise) actually incurred by it in connection with its duties
under this Agreement (collectively, the "Agent Fees and Expenses"). All Agent
Fees and Expenses shall be paid one-half by Buyer and one-half by Seller.
Escrow Agent shall have a lien upon the Funds for payment of its fees and
expenses. Escrow Agent may pay itself from the Funds for any fees and expenses
for which it has not been paid.
11
71
Section 4.3 Indemnification of Agent. The parties and their
respective successors and assigns agree jointly and severally to indemnify and
hold Agent harmless against any and all losses, claims, damages, liabilities,
and expenses, including reasonable costs of investigation, reasonable legal
counsel fees and disbursements that may be imposed on Agent or incurred by
Agent in connection with the performance of its duties under this Agreement,
including but not limited to any litigation arising from this Agreement or
involving its subject matter, provided, however, neither Buyer nor Seller nor
their successors and assigns need indemnify Agent for any loss, claim, damage,
liability or expense caused by Agent's gross negligence or willful misconduct.
ARTICLE V
MISCELLANEOUS
Section 5.1 No Right of Contribution. Seller hereby expressly
and irrevocably waives and releases any right that Seller might otherwise have
to contribution from either of the Companies (or any similar right to recover
any amount from any of the Companies) as a result of any Funds being utilized
to satisfy any indemnification claims of any Buyer Indemnitee, or as a result
of any payments by Seller with respect to any indemnification claims of any
Buyer Indemnitee.
Section 5.2 Notices. All notices, requests, consents or other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given or delivered by any party (a) when
received by such party if delivered by hand, (b) upon confirmation when
delivered by telecopy, (c) within one day after being sent by recognized
overnight delivery service, or (d) upon receipt of a return receipt after being
mailed by certified mail, return receipt requested, and in each case addressed
as follows:
(i) if to Buyer or to any Buyer Indemnitee:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
12
72
with copies to:
Chancellor Media Corporation of Los Angeles
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Seller or to any Seller Indemnitee, to:
ML Media Partners L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Proskauer Rose, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
13
73
(iii) if to Agent, to:
Mail or other Instructions
Key Trust Company of Ohio, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any party by written notice to the other parties pursuant to this Section 5.1
may change the address or the persons to whom notices or copies thereof shall
be directed.
Section 5.3 Assignment. This Agreement and the rights and duties
hereunder shall be binding upon and inure to the benefit of the parties hereto
and the successors and assigns of each of the parties to this Agreement. No
rights, obligations or liabilities hereunder shall be assignable by any party
without the prior written consent of the other parties, except that Buyer may
assign its rights under this Agreement without obtaining the prior written
consent of the other parties hereto to any person or entity to whom, pursuant
to the Stock Purchase Agreement, Buyer is permitted to assign all or a portion
of its rights under the Stock Purchase Agreement, provided that any such
assignee duly executes and delivers an agreement to assume Buyer's obligations
under this Agreement and that Buyer remains liable with respect to such
obligations.
Section 5.4 Amendment. This Agreement may be amended or modified
only by an instrument in writing duly executed by Agent, Buyer and Seller.
Section 5.5 Waivers. Any waiver by any party hereto of any breach of
or failure to comply with any provision of this Agreement by any other party
hereto shall be in writing and shall not be construed as, or constitute, a
continuing waiver of such provision, or a waiver of any other breach of, or
failure to comply with, any other provision of this Agreement.
Section 5.6 Construction. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Ohio
without giving effect to the choice of law provisions thereof. The headings in
this Agreement are solely for convenience of reference and shall not be given
any effect in the construction or interpretation of this Agreement. Unless
otherwise stated, references to Sections and Exhibits are references to
Sections and Exhibits of this Agreement.
14
74
Section 5.7 Third Parties. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
or entity other than Buyer, Buyer Indemnitees, Seller, Seller Indemnitees and
Agent any rights or remedies under, or by reason of, this Agreement.
Section 5.8 Termination. This Agreement shall terminate at the time
of the final resolution of all Pending Claims and, if any amount remains
thereunder, disbursement of the Funds, all in accordance with the provisions of
this Agreement.
Section 5.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed any original and all of which
together shall constitute a single instrument.
Section 5.10 Waiver of Offset Rights. Agent hereby waives any and
all rights to offset that it may have against the Funds including, without
limitation, claims arising as a result of any claims, amounts, liabilities,
costs, expenses, damages, or other losses that Agent may be otherwise entitled
to collect from any party to this Agreement.
15
75
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the day and year first
written above.
BUYER:
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
SELLER:
M.L. MEDIA PARTNERS L.P.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
AGENT:
KEY TRUST COMPANY OF OHIO, N.A.
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
76
EXHIBIT A
Fees of Agent
$2,500.00 Annual Escrow Agent Fee for Administration.
Escrow Fee will be payable upon execution of the Escrow Agreement and annually
thereafter on the anniversary date of the agreement.