EXHIBIT 10.08.04
ASSET EXCHANGE AGREEMENT
by and among
BISON MEDIA, INC.,
AMFM TEXAS BROADCASTING, LP
and
AMFM TEXAS LICENSES, LP
dated as of
JANUARY 19, 2000
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINED TERMS
1.1 Defined Terms................................................................ 1
ARTICLE 2
EXCHANGE AND ASSUMPTION OF LIABILITIES
2.1 Exchange of Assets........................................................... 4
2.2 Excluded Assets.............................................................. 4
2.3 Absence of Liens............................................................. 5
2.4 Assumption of Liabilities.................................................... 6
2.5 Section 1031; Appraisals; Tax Reporting...................................... 7
2.6 Deemed Assignment of Contracts............................................... 8
ARTICLE 3
CLOSING
3.1 Place and Time of Closing.................................................... 8
3.2 Closing Deliveries........................................................... 9
3.3 Accounts Receivable.......................................................... 10
3.4 Prorations and Adjustments................................................... 11
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 General...................................................................... 13
4.2 Organization; Good Standing.................................................. 13
4.3 Authority.................................................................... 13
4.4 No Breach or Violation....................................................... 13
4.5 Approvals.................................................................... 14
4.6 Litigation................................................................... 14
4.7 FCC Qualifications........................................................... 14
4.8 Brokerage.................................................................... 15
4.9 Taxes........................................................................ 15
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Page
4.10 Insolvency Proceedings....................................................... 15
4.11 Title to Assets.............................................................. 15
4.12 Title to and Condition of Tangible Personal Property......................... 15
4.13 Description, Title to and Condition of Real Property......................... 16
4.14 Contracts.................................................................... 16
4.15 Employee Benefit Matters..................................................... 17
4.16 Labor Relations.............................................................. 18
4.17 Licenses..................................................................... 18
4.18 Intangible Assets............................................................ 19
4.19 Compliance with Laws......................................................... 19
4.20 FCC Compliance............................................................... 19
4.21 Environmental Matters........................................................ 19
4.22 Financial Statements; Budgets................................................ 20
4.23 Conduct of Business in Ordinary Course....................................... 20
4.24 Insurance.................................................................... 21
ARTICLE 5
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Covenants of the Parties..................................................... 21
5.2 FCC Consent.................................................................. 21
5.3 Compliance with HSR Act...................................................... 21
5.4 Conduct of Business.......................................................... 22
5.5 Deemed Consent............................................................... 23
5.6 No Solicitation.............................................................. 23
5.7 Access; Information; Confidentiality; Publicity.............................. 23
5.8 Inconsistent Actions......................................................... 25
5.9 Cooperation.................................................................. 25
5.10 Control of Stations.......................................................... 25
5.11 Risk of Loss................................................................. 25
5.12 Third Party Consents......................................................... 25
5.13 Intentionally omitted........................................................ 26
5.14 Intentionally omitted........................................................ 26
5.15 Estoppel Certificates........................................................ 26
5.16 Environmental Assessments.................................................... 26
5.17 Real Property Surveys and Title Commitments.................................. 27
5.18 Investigation; No Other Representations or Warranties........................ 28
5.19 Bulk Sales................................................................... 29
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Page
ARTICLE 6
CONDITIONS OF BISON
6.1 Conditions of Bison's Obligations............................................ 29
ARTICLE 7
CONDITIONS OF AMFM
7.1 Conditions to AMFM's Obligations............................................. 30
ARTICLE 8
TERMINATION AND OPPORTUNITY TO CURE
8.1 Termination.................................................................. 32
8.2 Opportunity to Cure.......................................................... 32
8.3 Liability.................................................................... 32
ARTICLE 9
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; AND REMEDIES
9.1 Survival; Sole Remedy........................................................ 32
9.2 Indemnification by AMFM of Bison............................................. 33
9.3 Indemnification by Bison of AMFM............................................. 33
9.4 Procedure for Indemnification................................................ 34
9.5 Specific Performance......................................................... 36
ARTICLE 10
GENERAL PROVISIONS
10.1 Expenses..................................................................... 36
10.2 Sales Taxes.................................................................. 36
10.3 Benefit of Agreement; Assignment............................................. 37
10.4 Notices...................................................................... 37
10.5 Entire Agreement; Exhibits; Amendment; Waiver................................ 38
10.6 Governing Law; Severability; Attorneys' Fees................................. 39
10.7 Counterparts................................................................. 39
10.8 Director and Officer Liability............................................... 39
10.9 No Reversionary Interest..................................................... 39
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Page
10.10 References and Titles........................................................ 39
10.11 Schedules.................................................................... 40
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EXHIBITS:
Exhibit A -- Form of Easement Agreement
Exhibit B -- Forms of Assumption Agreement
Exhibit C -- Forms of Bill of Sale and Assignment
Exhibit D -- Forms of Opinion of Corporate Counsel
Exhibit E -- Forms of Opinion of FCC Counsel
SCHEDULES:
Schedule 2.2 -- Excluded Assets
Schedule 4.6 -- Litigation
Schedule 4.7 -- FCC Qualifications
Schedule 4.12 -- Tangible Personal Property
Schedule 4.13 -- Real Property
Schedule 4.14 -- Contracts
Schedule 4.16 -- Labor Relations
Schedule 4.17 -- Licenses
Schedule 4.18 -- Intangible Assets
Schedule 4.20 -- FCC Compliance
Schedule 4.21 -- Environmental Matters
Schedule 4.22 -- Financial Statements; Budgets
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ASSET EXCHANGE AGREEMENT
This Asset Exchange Agreement ("Agreement") is made and entered into as
of this 19th day of January, 2000, by and among BISON MEDIA, INC., a Colorado
corporation ("Bison"), AMFM TEXAS BROADCASTING, LP, a Delaware limited
partnership ("AMFM Texas"), and AMFM TEXAS LICENSES, LP, a Delaware limited
partnership (together with AMFM Texas, "AMFM"). Definitions of capitalized terms
used in this Agreement are set forth either with the first use of the term or in
Article 1 hereof.
RECITALS
Bison is the owner, operator and licensee of KPRZ-FM, licensed to
Fountain, Colorado (the "Bison Station"). AMFM is the owner, operator and
licensee of radio station KSKY-AM, licensed to Balch Springs, Texas (the "AMFM
Station" and, together with the Bison Station, the "Stations"). The Bison
Station and the AMFM Station are sometimes referred to individually as a
"Station" and collectively as the "Stations."
Bison and AMFM desire to exchange substantially all the assets used or
held by them for use in the operations of the Bison Station and the AMFM
Station, both tangible and intangible, excluding the Bison Excluded Assets (as
hereinafter defined) and the AMFM Excluded Assets (as hereinafter defined), and
by so doing to acquire the radio broadcast business presently conducted by the
other upon the terms and conditions hereinafter set forth.
The prior consent of the Federal Communications Commission ("FCC") to
the assignment of the licenses and authorizations issued by the FCC for the
Stations is required. If such consent or approval is obtained, it is the intent
of the parties to consummate the transaction contemplated by this Agreement,
subject to all of the other terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual promises herein set forth
and subject to the terms and conditions hereof, the parties agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 DEFINED TERMS. Unless otherwise stated in this Agreement, the
following terms when used herein shall have the meanings assigned to them below
(such meanings to be equally applicable to both the singular and plural forms of
the terms defined).
"Acquiring Party" means AMFM or Bison in its capacity as the
party acquiring a Station hereunder.
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"Affiliate" means any person or entity that is controlling,
controlled by or under common control with the named person or entity.
"AMFM Disclosure Schedules" means the Schedules to this Agreement
relating to the AMFM Station.
"AMFM Excluded Assets" means those Assets that are used or held
for use by AMFM or any of its Affiliates in the operation of the AMFM Station,
but that are excluded pursuant to Section 2.2.
"Applicable Disclosure Schedules" means the AMFM Disclosure
Schedules or the Bison Disclosure Schedules, as the case may be.
"Assets" means all of a Conveying Party's or its Affiliate's
right, title and interest in assets, real and personal, tangible and intangible,
including Licenses, Real Property, Tangible Personal Property, Records,
Contracts and Intangible Assets which are used or held for use in the business
or operation of the Conveying Party's Station.
"Bill of Sale and Assignment" means the Bill of Sale and
Assignment between Bison and AMFM substantially in the form of Exhibit C.
"Bison Disclosure Schedules" means the Schedules to this
Agreement relating to the Bison Station.
"Bison Excluded Assets" means those Assets that are used or held
for use by Bison or any of its Affiliates in the operation of the Bison Station
and that are excluded pursuant to Section 2.2.
"Choses in Action" means a right to receive or recover property,
debt or damages on a cause of action, whether pending or not and whether arising
in contract, tort or otherwise. The term shall include rights to
indemnification, damages for breach of warranty or any other event or
circumstance, judgments, settlements, and proceeds from judgments or
settlements.
"Contracts" means contracts, leases and other agreements or
instruments, written or oral, including Time Sales Agreements and Trade and
Barter Agreements which relate to the operation of each Conveying Party's
Station.
"Conveying Party" means AMFM or Bison in its capacity as the
party conveying a Station hereunder.
"FCC Licenses" means Licenses issued by the FCC which relate to
the operation of each Conveying Party's Station.
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"Final Order" means action by the FCC (i) which has not been
vacated, reversed, stayed, set aside, annulled or suspended; (ii) with respect
to which no appeal, request for stay or petition for rehearing, reconsideration
or review by any party or by the FCC on its own motion, is pending; and (iii) as
to which the time for filing any such appeal, request, petition, or similar
document or for the reconsideration or review by the FCC on its own motion under
the Communications Act of 1934, as amended, and the rules and regulations of the
FCC, has expired.
"Intangible Assets" means trademarks, trade names, service marks,
franchises, copyrights, jingles, logos, slogans, patents, patent applications,
trademark, including registrations and applications for registration of any of
them, and any other intangible property such as rights under manufacturers' and
vendors' warranties and similar claims against third parties relating to assets
conveyed hereunder which relate to the business or operation of each Conveying
Party's Station.
"Licenses" means licenses, permits, authorizations and call
letters, qualifications, orders, franchises, certificates, consents and
approvals issued by any governmental or regulatory agency or authority, whether
federal, state or local, and all applications for such Licenses which relate to
the operation of each Conveying Party's Station.
"Material Adverse Effect" means a material adverse effect on the
business, operations, properties, financial condition, results of operations, or
assets of the Stations, in each case taken as a whole.
"Miscellaneous Agreements" means Contracts which were entered
into in the ordinary course of business which involve payments of less than
$1,000 individually and less than $10,000 in the aggregate in any calendar year,
and which can be terminated on thirty (30) days notice (or less) without
penalty, and which are not included on Schedule 4.14 of the Applicable
Disclosure Schedules which relate to the operation of each Conveying Party's
Station.
"Real Property" means all real property and interests in real
property, including fee estates, leaseholds and subleaseholds, exchange option,
easements, licenses, rights to access, and rights of way, and all buildings and
other improvements thereon which are used or held for use by the Conveying Party
in connection with the ownership or operation of each Conveying Party's Station.
"Records" means files, payable records, receivable records,
invoices, statements, traffic material, music libraries, programs, program
lists, programming material, programming information and studies, technical
information and engineering data, proprietary information and data, maps, plans,
diagrams, blueprints, schematics and technical drawings, engineering records,
news and advertising studies and consultants' reports, ratings reports,
marketing and demographic data, sales correspondence, lists of advertisers,
promotional materials, credit and sales reports, budgets, financial reports and
projections, sales, operating and business plans, computer programs and
software, public inspection files, applications and filings with the FCC and
original (if available)
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executed copies of all written Contracts to be assigned hereunder, all of which
relate to the operation of each Conveying Party's Station.
"Tangible Personal Property" means equipment, office furniture
and fixtures, office materials and supplies, inventory, spare parts, motor
vehicles and other tangible personal property of every kind and description,
owned or leased and used or held for use in the business or operation of each
Conveying Party's Station, together with any replacements thereof and additions
thereto made between the date hereof and the Effective Date, and less any
retirements or dispositions thereof made between the date hereof and the
Effective Date in the ordinary course of business and consistent with past
practices of each Conveying Party; provided, however, that the value of all such
assets retired or disposed of and not replaced by a Conveying Party with an
asset of like kind and quality shall not exceed $10,000 in the aggregate.
"Time Sales Agreements" means Contracts for the sale of time on a
Station for cash.
"Trade and Barter Agreements" means Contracts for the sale of
time on a Station in exchange for goods and services, including program barter
agreements.
ARTICLE 2
EXCHANGE AND ASSUMPTION OF LIABILITIES
2.1 EXCHANGE OF ASSETS. At the Closing (as defined in Section 3.1):
(a) Bison shall transfer, assign, convey and deliver to AMFM, and
AMFM shall accept and acquire from Bison, (i) the Assets used or held for use by
Bison or any of its Affiliates in the business or operation of the Bison
Station, including but not limited to the assets described on the Bison
Disclosure Schedules, but excluding the Bison Excluded Assets (the "KPRZ
Assets"), and (ii) $7,500,000 in cash (the "KPRZ Cash Consideration").
(b) AMFM shall transfer, assign, convey and deliver to Bison, and
Bison shall accept and acquire from AMFM, the Assets used or held for use by
AMFM or any of its Affiliates in the business or operation of the AMFM Station,
including but not limited to the assets described on the AMFM Disclosure
Schedules, but excluding the AMFM Excluded Assets (the"KSKY Assets").
2.2 EXCLUDED ASSETS. With respect to any Station, the Assets to be
conveyed hereunder shall not include:
(a) any item identified on Schedule 2.2 of the Applicable
Disclosure Schedule;
(b) Records pertaining to corporate organization, existence and
capitalization; Records related solely to internal corporate matters; personnel
Records (provided that the Acquiring
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Party shall be provided with such Records as are necessary to comply with the
provisions of Section 5.12); and any Records that the Conveying Party is
required by law to retain, including duplicate copies of such Records as are
necessary to enable the Conveying Party to file tax returns and reports;
(c) except for the KPRZ Cash Consideration, all cash, cash
equivalents or similar type investments, such as certificates of deposit,
Treasury bills, and other marketable securities on hand and/or in banks, notes
receivable, bonds, letters of credit and deposits, in each case determined as of
11:59 p.m. on the day prior to the Closing Date;
(d) all accounts receivable arising out of the operation of a
Station for services performed or provided prior to 11:59 p.m. on the day prior
to the Closing Date, but specifically excluding any amounts owing in connection
with advertisements or programs to be broadcast at and after the Closing Date
(the "Accounts Receivable");
(e) all Contracts of insurance, including all insurance claims,
rights to indemnification and defenses under all insurance policies and all
insurance proceeds;
(f) all pensions, profit sharing or employee benefit plans,
related trusts and the assets thereof;
(g) any interest in and related to any (i) refunds of federal,
state or local franchise, income or other taxes or (ii) deposits or utility
deposits, which, in each case, relate solely to the period prior to the Closing
Date;
(h) all items of personal property owned by Station personnel;
(i) all Choses in Action, if any, of the Conveying Party (i)
relating to any federal, state or local franchise, income or other taxes or (ii)
described in Schedule 2.2 of the Applicable Disclosure Schedules.
(j) all tangible and intangible personal property disposed of or
consumed in the ordinary course of business between the date of this Agreement
and the Closing Date, or as otherwise permitted under the terms hereof;
(k) any collective bargaining agreement, any other Contract not
listed in Schedule 4.14 of the Applicable Disclosure Schedules, and all
Contracts that have terminated or expired prior to the Closing Date in the
ordinary course of business and as permitted hereunder;
(l) the consideration received by the Conveying Party hereunder;
(m) the rights of the Conveying Party under this Agreement or any
other related document; and
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(n) the capital stock of any subsidiary of the Conveying Party.
2.3 ABSENCE OF LIENS. The KSKY Assets and the KPRZ Assets shall be
delivered free and clear of charges, conditions, community property interests,
options, hypothecations, attachments, conditional sales, title retentions,
rights of first refusal, debts, security interests, mortgages, trusts, claims,
pledges or other liens, liabilities, encumbrances or rights of third parties
whatsoever ("Liens"), except for (a) Liens for current taxes not yet due and
payable or the validity of which is being contested in good faith by appropriate
proceedings, not to exceed $10,000 in the aggregate for any party, (b) Liens
which arise from valid leases or subleases to third parties with respect to
property not used in the operations of the Stations, (c) Liens and defects in
title that are not material to the owner or lessee, as the case may be, (d)
Liens under Contracts listed on Schedule 4.14 of the Applicable Disclosure
Schedules and (e) Liens securing indebtedness that will be removed prior to or
at the Closing (collectively, "Permitted Liens").
2.4 ASSUMPTION OF LIABILITIES. At the Closing:
(a) AMFM STATION. AMFM shall assign to Bison all of its rights
and privileges under all Time Sales Agreements, Trade Agreements and
Miscellaneous Agreements relating to the AMFM Station and under the Contracts
listed on Schedule 4.14 of the AMFM Disclosure Schedules (but excluding any
Contract identified as a AMFM Excluded Asset) (collectively, the "AMFM
Contracts"), and Bison shall assume and undertake to pay, discharge and perform
all of AMFM's obligations and liabilities under the AMFM Contracts insofar as
they relate to the time on and after the Closing Date and arise out of events
which occur after the Closing Date. Except as expressly provided in this
Agreement, Bison shall not assume or become obligated to perform any debt,
liability or obligation of AMFM whatsoever, including but not limited to (i) any
obligations or liabilities under any Contract other than the AMFM Contracts,
(ii) any obligations or liabilities under the AMFM Contracts relating to the
period prior to the Closing Date, (iii) any claims or pending litigation or
proceedings relating to the operation of the AMFM Station prior to the Closing
Date, (iv) any insurance policies of AMFM, (v) any obligations or liabilities of
AMFM arising under capitalized leases or other financing agreements except as
set forth on Schedule 4.14 of the AMFM Disclosure Schedules, (vi) any
obligations or liabilities of AMFM under any employee pension, retirement,
health and welfare or other benefit plans or collective bargaining agreements,
(vii) any obligation to any employee of the AMFM Station for severance benefits,
vacation time, or sick leave, (viii) any liability for any taxes attributable to
the KSKY Assets or the operations of the AMFM Station on or prior to the Closing
Date, (ix) any obligations or liabilities relating to the AMFM Excluded Assets,
or (x) any obligations or liabilities (A) arising out of or related to
activities, events or transactions occurring, or conditions existing, on or
prior to the Closing Date, or (B) caused by, arising out of, or resulting from
any action or omission of AMFM on or prior to the Closing Date. All such
obligations and liabilities shall remain and be the obligations and liabilities
solely of AMFM.
(b) BISON STATION. Bison shall assign to AMFM all of its rights
and privileges under all Time Sales Agreements, Trade Agreements and
Miscellaneous Agreements related to the
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Bison Station and under the Contracts listed on Schedule 4.14 of the Bison
Disclosure Schedules (but excluding any Contract identified as a Bison Excluded
Asset) (collectively, the "Bison Contracts"), and AMFM shall assume and
undertake to pay, discharge and perform all of Bison's obligations and
liabilities under the Bison Contracts insofar as they relate to the time on and
after the Closing Date and arise out of events which occur after the Closing
Date. Except as expressly provided in this Agreement, AMFM shall not assume or
become obligated to perform any debt, liability or obligation of Bison
whatsoever, including but not limited to (i) any obligations or liabilities
under any Contract other than the Bison Contracts, (ii) any obligations or
liabilities under the Bison Contracts relating to the period prior to the
Closing Date, (iii) any claims or pending litigation or proceedings relating to
the operation of the Bison Station prior to the Closing Date, (iv) any insurance
policies of Bison, (v) any obligations or liabilities of Bison arising under
capitalized leases or other financing agreements except as set forth on Schedule
4.14 of the Bison Disclosure Schedules, (vi) any obligations or liabilities of
Bison under any employee pension, retirement, health and welfare or other
benefit plans or collective bargaining agreements, (vii) any obligation to any
employee of the Bison Station for severance benefits, vacation time or sick
leave, (viii) any liability for any taxes attributed to the KPRZ Assets or the
operations of the Bison Station on or prior to the Closing Date, (ix) any
obligations or liabilities relating to the Bison Excluded Assets, or (x) any
obligations or liabilities (A) arising out of or related to activities, events
or transactions occurring, or conditions existing, on or prior to the Closing
Date, or (B) caused by, arising out of, or resulting from any action or omission
of Bison on or prior to the Closing Date. All such obligations and liabilities
shall remain and be the obligations and liabilities solely of Bison.
2.5 SECTION 1031; APPRAISALS; TAX REPORTING
(a) AMFM and Bison agree that the fair market value of each of the
Assets (other than Assets which, individually or in the aggregate, are not
material in value) which comprise the KSKY Assets and the KPRZ Assets will be
determined on the basis of appraisals (the "Appraisal") prepared by the firm of
Broadcast Investment Analysts or such other appraisal firm as the parties may
mutually agree (the "Appraiser"), whose fees and expenses shall be shared
equally between AMFM and Bison. The parties shall direct the Appraiser to
deliver the Appraisals within sixty (60) days of the date of this Agreement. To
the extent feasible, AMFM and Bison agree to use for this purpose reasonably
current appraisals obtained by the Conveying Party in connection with its recent
acquisition of a Station.
(b) Each of AMFM and Bison, as an Acquiring Party, shall cause to be
prepared within forty-five (45) days of receipt of the Appraisals drafts of IRS
Forms 8594 and 8824 on the basis of the Appraisals. Each of AMFM and Bison shall
deliver drafts of their respective IRS Forms 8594 and 8824 for the Station to
the Conveying Party for approval, which approval shall not be unreasonably
withheld or delayed.
(c) To the extent supported by "substantial authority," as defined in
the Treasury regulations promulgated under Section 6662 of the Code
("Substantial Authority"), each of AMFM and Bison shall report the transaction
contemplated hereby as a "like-kind exchange" under Section
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1031 of the Code, consistent with the Appraisals and the IRS Forms 8594 and 8824
prepared in accordance with clause (b) above, and shall not take, and shall not
cause their respective Affiliates, representatives, successors and assigns to
take, any position on any federal, state or local tax return or report, or in
any tax examination, tax audit or tax litigation, inconsistent with such
reporting position, the Appraisals, or such IRS Form 8594 or 8824.
(d) Each of AMFM and Bison shall cooperate with the other, including,
without limitation, in preparing IRS Forms 8594 and 8824 and executing all
necessary agreements and documents to the extent necessary for AMFM and Bison to
treat the exchange of the Assets hereunder as a "like-kind exchange" to the
extent permissible under Section 1031 of the Code.
(e) Neither AMFM nor Bison shall have any liability or obligation to the
other for the failure of the exchange of the Assets hereunder to qualify as a
like-kind exchange under Section 1031 of the Code unless such failure is the
result of a material breach by AMFM or Bison of its representations, warranties,
covenants and obligations set forth in this Section 2.5. Notwithstanding
anything in this Agreement to the contrary, the provisions of this Section 2.5
shall survive without limitation.
2.6 DEEMED ASSIGNMENT OF CONTRACTS. To the extent that the assignment
hereunder of any of the Contracts listed in Schedule 4.14 of the Applicable
Disclosure Schedules shall require the consent of any other party (or in the
event that any of the same shall be non-assignable), neither this Agreement nor
any actions taken hereunder shall constitute an assignment or an agreement to
assign if such assignment or attempted assignment would constitute a breach
thereof or result in a loss or diminution thereof; provided, however, that
Conveying Party shall cooperate, at Acquiring Party's expense, with Acquiring
Party to establish a reasonable arrangement designed to provide Acquiring Party
with the benefits and burdens of any Contract listed in Schedule 4.14 of the
Applicable Disclosure Schedules, including appointing Acquiring Party to act as
its agent to perform all of Conveying Party's obligations under such Contracts
and to collect and promptly remit to Acquiring Party all compensation received
by Conveying Party pursuant to such Contracts and to enforce, for the account
and benefit of Acquiring Party, any and all rights of Conveying Party against
any other person arising out of the breach or cancellation of such Contracts by
such other person or otherwise (any and all of which arrangements shall
constitute, as between the parties hereto, a deemed assignment or transfer);
provided, that from and after Closing, the Conveying Party shall have no
liability to the Acquiring Party in the event that any Contract listed in
Schedule 4.14 of the Applicable Disclosure Schedules requiring consent to
assignment hereunder (or which by its terms in non-assignable) is terminated.
ARTICLE 3
CLOSING
3.1 PLACE AND TIME OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") will take place at 10:00 a.m., local time,
at the offices of Vinson & Elkins L.L.P., Dallas,
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Texas, on the later to occur of (i) the tenth business day after the FCC's grant
of the FCC Applications (as defined in Section 5.2), (ii) the satisfaction or
waiver of the conditions set forth in Sections 6 and 7 hereof, or (iii) at such
other time or place as shall be agreed upon in writing by AMFM and Bison (in any
event, the "Closing Date"). Notwithstanding the foregoing, but subject to the
satisfaction or waiver of the conditions set forth in Articles 6 and 7:
(a) If a Cure Period (as defined in Section 8.2) has not ended on or
before the Closing Date, the Closing Date shall be extended to the end of the
Cure Period; and
(b) If the Closing Date does not occur within 20 days prior to the
latest date to which the FCC Consents (as defined in Section 5.2) remain
effective, the parties shall request approval from the FCC to extend the
effective period of the FCC Consents so that the Closing contemplated hereunder
will not violate any FCC policies.
3.2 CLOSING DELIVERIES.
(a) At the Closing, Bison shall execute and deliver to AMFM the
following:
(i) Consideration. The KPRZ Cash Consideration by wire transfer
of immediately available funds;
(ii) Assumption Agreement. A duly executed Assumption Agreement
in the form attached hereto as Exhibit B;
(iii) Transfer Documents. A duly executed Bill of Sale and
Assignment, in the form attached hereto as Exhibit C together with any other
assignments and other transfer documents as reasonably requested by AMFM;
(iv) Certificates. The certificates referred to in Section 7.1(a)
or a certificate with any exceptions thereto; and
(v) Consents; Acknowledgments. The original of each Consent
listed on Schedule 4.14 of the Bison Disclosure Schedules;
(vi) Estoppel Certificates. Estoppel certificates with respect to
any Real Property leases listed on Schedule 4.13 of the Bison Disclosure
Schedules in a form and substance reasonably satisfactory to AMFM;
(vii) Licenses, Permits, Contracts, Business Records, Etc. To the
extent they are in the possession of Bison, copies of all Licenses, Permits,
Assumed Contracts, blueprints, schematics, working drawings, plans, projections,
statistics, engineering records and all files and records used by Bison in
connection with the Bison Station's business and operations, which copies shall
be available at the Closing or at the Bison Station's principal business
offices;
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(viii) Assignment Documents. Any documents deemed necessary or
desirable by AMFM to effect an assignment of its rights and obligations
hereunder.
(b) At the Closing, AMFM shall execute and deliver to Bison the
following:
(i) Easement. A duly executed Easement Agreement in the form
attached hereto as Exhibit A;
(ii) Assumption Agreement. A duly executed Assumption Agreement
in the form attached hereto as Exhibit B;
(iii) Transfer Documents. A duly executed Bills of Sale and
Assignment, in the form attached hereto as Exhibit C together with any other
assignments and other transfer documents as reasonably requested by Bison;
(iv) Certificates. The certificates referred to in Section 6.1(a)
or a certificate with any exceptions thereto; and
(v) Consents; Acknowledgments. The original of each Consent
listed on Schedule 4.14 of the AMFM Disclosure Schedules;
(vi) Estoppel Certificates. Estoppel certificates with respect to
any Real Property leases listed on Schedule 4.13 of the AMFM Disclosure
Schedules in a form and substance reasonably satisfactory to Bison;
(vii) Licenses, Permits, Contracts, Business Records, Etc. To the
extent they are in the possession of AMFM, copies of all Licenses, Permits,
Assumed Contracts, blueprints, schematics, working drawings, plans, projections,
statistics, engineering records and all files and records used by AMFM in
connection with the AMFM Station's business and operations, which copies shall
be available at the Closing or at the AMFM Station's principal business offices;
(viii) Assignment Documents. Any documents deemed necessary or
desirable by Bison to effect an assignment of its rights and obligations
hereunder.
(ix) Title Policy Requirements. Any affidavits or other documents
as shall be reasonably required by a title company pursuant to or required under
the terms of any title policy obtained by or issued to Salem.
(c) At the Closing, Bison and AMFM shall receive from each other's chief
executive officer or chief financial officer a non-foreign affidavit within the
meaning of section 1445(b)(2) of the Code.
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3.3 ACCOUNTS RECEIVABLE. After the Closing, AMFM will continue to
collect the Accounts Receivable relating to the AMFM Station (the "AMFM Accounts
Receivable"), and Bison will continue to collect the Accounts Receivable
relating to the Bison Station (the "Bison Accounts Receivable"), for the period
ending at 11:59 p.m. on the day prior to the Closing Date. To the extent,
however, that AMFM collects any Bison Accounts Receivable or Bison collects any
AMFM Accounts Receivable, within fifteen (15) business days of the end of each
calendar month following the Closing Date, such party shall deliver to the other
an accounting of all such collections during the preceding calendar month and
shall at that time deposit or remit all collections into a bank account
designated by or in accordance with written instructions from such party. Any
amounts received by Bison or AMFM from account debtors included among the other
party's Accounts Receivable shall be applied first to such other party's
Accounts Receivable, unless the account debtor specifically instructs that the
payment be otherwise applied. If an account debtor disputes an account included
among the Accounts Receivable, AMFM or Bison, as the case may be, may request
the reassignment of that account to such party for collection. Neither party
shall have any further obligation to the other with respect to the Accounts
Receivable for such period.
3.4 PRORATIONS AND ADJUSTMENTS.
(a) Except as otherwise provided herein, all income and expenses arising
from the conduct of the business and operations of the AMFM Station and Bison
Station shall be prorated between AMFM and Bison and an appropriate adjustment
shall be made in accordance with the principle that each party (i) shall receive
all revenues and shall be responsible for all expenses relating to the business
and operations of its respective station for the period ending at 11:59 p.m. on
the day prior to the Closing Date, and (ii) shall receive all revenues and shall
be responsible for all expenses relating to the business and operations of the
acquired Station thereafter. Such prorations and adjustments shall include,
without limitation, music and other license fees, deposits, liabilities and
obligations under the AMFM Contracts and the Bison Contracts, all ad valorem and
applicable property taxes (but excluding sales taxes covered by Section 10.2 of
this Agreement), business and license fees, annual FCC regulatory fees, power
and utility expenses, rents (excluding amounts paid as capital expenditures in
connection with real property, whether leased or owned), and similar prepaid and
deferred items attributable to the ownership and operation of the Stations.
Trade and Barter Agreements shall be prorated to the extent provided in Section
3.4(f). The parties shall provide each other a list of all known proratable
items and payables for the Stations at least five (5) business days before the
Closing Date.
(b) The prorations and adjustments contemplated by this Section 3.4
shall be determined in accordance with GAAP, consistently applied, and, to the
extent practicable, shall be made on the Closing Date. Those prorations and
adjustments not reasonably capable of being ascertained on the Closing Date,
shall be made in accordance with the procedures set forth in Sections 3.4(c) and
3.4(d).
(c) No later than ninety (90) days after the Closing Date, AMFM shall
deliver to Bison a schedule of its proposed prorations with respect to the Bison
Station (the "Bison Proration Schedule"), and Bison shall deliver to AMFM a
schedule of its proposed prorations with respect to
11
the AMFM Station (the "AMFM Proration Schedule," and together with the Bison
Proration Schedule, the "Proration Schedules"). Each of the Proration Schedules
shall set forth in reasonable detail the basis for the determinations proposed
therein.
(d) For purposes of this Section 3.4(d) and Section 3.4(e), the party
delivering a Proration Schedule is referred to as the "Proponent" and the party
receiving a Proration Schedule is referred to as the "Recipient." A Proration
Schedule shall be conclusive and binding upon the Recipient unless the Recipient
provides the Proponent with written notice of objection (the "Notice of
Disagreement") within thirty (30) days after the Recipient's receipt of the
Proration Schedule, which notice shall state the prorations of expenses proposed
by the Recipient ("Recipient's Proration Amount"). The Proponent shall have
fifteen (15) days from receipt of a Notice of Disagreement to accept or reject
Recipient's Proration Amount. If the Proponent rejects Recipient's Proration
Amount, and the amount in dispute exceeds $5,000 with respect to any Station,
the dispute shall be submitted within ten (10) days to PricewaterhouseCoopers
L.L.P., an independent certified public accounting firm, for resolution, such
resolution to be made within thirty (30) days after submission to the accounting
firm and to be final, conclusive and binding on the Proponent and the Recipient.
The Proponent and the Recipient agree to share equally the fees and expenses
incurred by PricewaterhouseCoopers L.L.P., but each party shall bear its own
legal fees and other expenses, if any. If the amount in dispute is equal to or
less than $5,000 with respect to any single Station, such amount shall be
divided equally between the Proponent and the Recipient.
(e) Payment by AMFM or Bison, as the case may be, of the proration
amounts determined pursuant to this Section 3.4 shall be made as follows: The
proration amounts due from AMFM shall be netted against the proration amounts
due from Bison with respect to each of the Stations, and AMFM or Bison, as the
case may be, shall pay such net amount fifteen (15) days after the last of the
following events has occurred with respect to the AMFM Station and the Bison
Station: (i) the Recipient's acceptance of the Proration Schedule or failure to
give the Proponent a timely Notice of Disagreement; (ii) the Proponent's
acceptance of Recipient's Proration Amount or failure to reject Recipient's
Proration Amount within fifteen (15) days of receipt of a Notice of
Disagreement; (iii) the Proponent's rejection of the Recipient's Proration
Amount in the event the amount in dispute equals or is less than $5,000; and
(iv) notice to the Proponent and the Recipient of the resolution of the disputed
amount by PricewaterhouseCoopers L.L.P. in the event that the amount in dispute
exceeds $5,000. Any payment required by AMFM or Bison, as the case may be, under
this Section 3.4(e) shall be paid by wire transfer of immediately available
funds to the account of the payee with a financial institution in the United
States as designated by such payee in the Proration Schedule or the Notice of
Disagreement (or by separate notice in the event a Notice of Disagreement is not
sent). If either AMFM or Bison fails to pay when due any amount under this
Section 3.4(e), interest on such amount will accrue from the date payment was
due to the date such payment is made at a per annum rate equal to the "prime
rate" as published daily in the Money Rates column of the Wall Street Journal
(or average of such rates if more than one rate is indicated) plus two percent
(2%), and such interest shall be payable upon demand.
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(f) Liabilities and obligations under Trade and Barter Agreements shall
be prorated in favor of the Acquiring Party only to the extent that the
aggregate net liability (determined in accordance with generally accepted
accounting principles) for air time under all such agreements as of the Closing
Date exceeds by $10,000 the fair market value of the property to be received by
the Acquiring Party after the Closing Date under all such agreements. There
shall be no proration in favor of the Conveying Party with respect to the Trade
and Barter Agreements, notwithstanding that the fair market value of the
property to be received under such agreements after the Closing Date exceeds the
liability for unperformed time.
3.5 FURTHER ASSURANCES. At the Closing, and from time to time after the
Closing, each party will execute and deliver such other instruments of
conveyance, assignment, transfer and delivery and will take such other actions
as the other party may reasonably request in order to more effectively transfer,
convey, assign, and deliver to such other party, and to place such other party
in possession and control of, any of the Assets to be conveyed under this
Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 GENERAL. AMFM hereby represents and warrants to Bison, and Bison
(and, where applicable, Salem Properties, Inc. ("Salem")) hereby represents and
warrants to AMFM as follows, each of which is true and correct on the date
hereof and shall survive the Closing subject to the provisions of this Agreement
(As used herein, "Applicable Station" shall mean the AMFM Station or the Bison
Station, as the case may be.):
4.2 ORGANIZATION; GOOD STANDING. Bison and Salem (a) are corporations
duly incorporated, validly existing and in good standing under the laws of the
States of Colorado and Delaware, respectively; (b) are or, as of the Closing
Date, will be qualified to do business as foreign corporations and are or will
be in good standing in the State of Texas; and (c) have all requisite corporate
power and authority to lease, own and operate the Assets that they are conveying
hereunder, to carry on their business as now being conducted, to enter into this
Agreement and to perform their obligations hereunder. AMFM (a) is a limited
partnership (with respect to AMFM Texas Broadcasting, LP and AMFM Texas
Licenses, LP) duly formed, validly existing and in good standing under the laws
of the State of Delaware; (b) is, or as of the Closing Date will be, qualified
to do business as a foreign limited partnership or a foreign limited liability
company, as the case may be, and is or will be in good standing in the State of
Colorado; and (c) has all requisite organization power and authority to lease,
own and operate the Assets that it is conveying hereunder, to carry on its
business as now being conducted, to enter into this Agreement and to perform its
obligations hereunder.
4.3 AUTHORITY. The Conveying Party has the full right and authority to
execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions provided for herein. All required action with
respect to the Conveying Party has been taken to
13
approve this Agreement and the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Conveying Party and constitutes its
valid and binding obligation, enforceable against the Conveying Party in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights of creditors generally and general principles
of equity.
4.4 NO BREACH OR VIOLATION. The execution and delivery of this Agreement
by the Conveying Party, the consummation by the Conveying Party (including
Salem, in the case of Bison, for purposes of this Section 4.4) of the
transactions contemplated hereby, and compliance by the Conveying Party with the
terms hereof, does not and will not:
(a) violate or result in the breach of or contravene any of the terms,
conditions or provisions of, or constitute a default under, the Conveying
Party's articles, certificate of incorporation, bylaws, limited partnership
agreement and/or limited liability company agreement, or any law, regulation,
order, writ, injunction, decree, determination or award of any court,
governmental department, board, agency or instrumentality, domestic or foreign
("Governmental Entity") or any arbitrator, applicable to the Conveying Party or
its assets and properties; or
(b) except for the need to secure those consents listed in Schedule 4.14
of the Applicable Disclosure Schedules, result in prohibited action under any
term or provision of, the material breach of any term or provision of, the
termination of, or the acceleration or permitting the acceleration of the
performance required by the terms of, or constitute a default under or require
the consent of any party to, any Contract to which the Conveying Party is a
party or by which it is bound; or
(c) cause the suspension or revocation of any of the Conveying Party's
Licenses relating to the Conveying Party's Stations.
4.5 APPROVALS. Except for the FCC Consent, and filings under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), if legally required, no authorizations, approvals or consents from any
Governmental Entity are necessary to permit the Conveying Party to execute and
deliver this Agreement, to perform its obligations hereunder and to ensure that
the Conveying Party's Station can be operated or used by the applicable
Acquiring Party after the Closing as presently operated or used.
4.6 LITIGATION.
(a) Except as disclosed on Schedule 4.6(a) of the Applicable Disclosure
Schedules, there are (i) no unsatisfied judgments, awards, orders, writs,
injunctions, arbitration decisions or decrees outstanding, and (ii) no claims,
actions, suits, investigations or proceedings pending or, to the best of the
Conveying Party's knowledge, threatened against or affecting the Conveying
Party's Assets to be conveyed hereunder in any court or before any Governmental
Entity or arbitrator that (if adversely determined, in the case of pending or
threatened matters) would impair in any material respect the ability of the
Conveying Party to perform its obligations hereunder or would impair or
14
hinder in any material respect the ability or right of the Acquiring Party to
operate the Station to be conveyed to it by the Conveying Party after the
Closing in the manner heretofore operated by the Conveying Party.
(b) Schedule 4.6(b) of the Applicable Disclosure Schedules contains a
description of all other claims, actions, suits, arbitrations, proceedings or
investigations pending or, to the Conveying Party's knowledge, threatened as of
the date of this Agreement before any Governmental Entity or arbitrator that
relates to the Station being conveyed by the Conveying Party.
4.7 FCC QUALIFICATIONS. Except as set forth in Schedule 4.7 of the
Applicable Disclosure Schedules, to the best of its knowledge, the Acquiring
Party is qualified legally, financially and otherwise to become the assignee of
the FCC Licenses for the Station to be conveyed to it hereunder under the
Communications Act of 1934, as amended (the "Act"), and under the rules and
regulations of the FCC as in effect on the date of this Agreement. No waiver of
any FCC rule or policy is necessary to be obtained for the FCC to grant consent
to the transactions herein.
4.8 BROKERAGE. Neither the Conveying Party, nor any Affiliate or agent
of the Conveying Party, has agreed to pay a commission or finder's fee in
connection with any of the transactions contemplated by this Agreement which
would cause any liability to the Acquiring Party, and if any commission or fee
is to be paid, the Conveying Party shall pay such commissions or fees and shall
hold harmless and indemnify the Acquiring Party therefor.
4.9 TAXES. There are no tax audits or other governmental proceedings
pending or, to the best of the Conveying Party's knowledge, threatened that
could result in a Lien on the Assets being conveyed by the Conveying Party
hereunder on or after the Closing Date or the imposition of any tax liability on
the applicable Acquiring Party and, to the best of the Conveying Party's
knowledge, no event has occurred that could impose on the applicable Acquiring
Party any liability for any taxes, penalties or interest due or to become due
from the Conveying Party.
4.10 INSOLVENCY PROCEEDINGS. Neither the Conveying Party nor any of the
Conveying Party's Assets to be conveyed hereunder are the subject of any pending
insolvency proceedings of any character. The Conveying Party has neither made an
assignment for the benefit of creditors nor taken any action with a view to the
institution of any such insolvency proceedings.
4.11 TITLE TO ASSETS. The Conveying Party or one of its Affiliates owns,
leases or is licensed to use, directly or indirectly, all assets, properties,
rights, franchises, claims and agreements of every kind and description used to
conduct the business and operations of the Applicable Station as they are
presently conducted.
4.12 TITLE TO AND CONDITION OF TANGIBLE PERSONAL PROPERTY. Except as
specified on Schedule 4.12 of the Applicable Disclosure Schedules:
15
(a) the Conveying Party has good title to or a valid leasehold interest
in the Tangible Personal Property to be conveyed hereunder free and clear of all
Liens, except for Permitted Liens;
(b) all of such Tangible Personal Property to be conveyed hereunder is
in a good state of repair and operating condition subject to normal repair,
maintenance and replacement and ordinary wear and tear; and
(c) all of the technical equipment included in such Tangible Personal
Property to be conveyed hereunder complies in all material respects with all
applicable FCC rules and regulations, the Act, and all other applicable laws,
rules, regulations, and ordinances.
4.13 DESCRIPTION, TITLE TO AND CONDITION OF REAL PROPERTY. Except for
Real Property expressly excluded pursuant to Section 2.2, Schedule 4.13 of the
Applicable Disclosure Schedules contains a description of all Real Property used
or held for use by the Conveying Party or any of its Affiliates in the business
or operation of the Applicable Station and indicates whether the Conveying Party
owns or leases such Real Property. Except as set forth on Schedule 4.13 of the
Applicable Disclosure Schedule,
(a) the Conveying Party has good and insurable title to and valid and
substituting leasehold interest in such owned and leased Real Property (which,
for this purpose shall include only ground leases), free and clear of all Liens,
except for Permitted Liens;
(b) to the Conveying Party's knowledge, all of the Conveying Party's
improvements on such Real Property are in compliance with applicable zoning and
land use laws, ordinances and regulations in all respects necessary to conduct
the operation of the Applicable Station operating thereon as presently
conducted, except for any instances of noncompliance which do not and will not
in the aggregate have a Material Adverse Effect on the business, assets,
financial condition or results of operations of the Applicable Station;
(c) all such improvements are in good working condition and repair
(ordinary wear and tear excepted), have no latent structural, mechanical or
other defects of material significance, are insurable at standard rates, and
comply in all material respects with FCC rules and regulations and all other
applicable federal, state and local statutes, ordinances and regulations;
(d) all of the Applicable Station's transmitting towers, ground radials,
guy anchors, transmitter buildings and related improvements located on such Real
Property are located entirely on such Real Property; and
(e) the Conveying Party has no knowledge of any pending, threatened or
contemplated action to take by eminent domain or otherwise to condemn any part
of such Real Property.
4.14 CONTRACTS.
16
(a) Schedule 4.14(a) of the Applicable Disclosure Schedules contains a
list of all Contracts relating to the Applicable Station as of the date of this
Agreement, except for (i) Miscellaneous Agreements, and (ii) Contracts expressly
excluded pursuant to Schedule 2.2 of the Applicable Disclosure Schedules.
(b) Schedule 4.14(b) of the Applicable Disclosure Schedule contains a
true and complete trade balance report for all Trade and Barter Agreements for
the Applicable Station as of December 31, 1999.
(c) The Conveying Party has furnished true and complete copies of all
written Contracts listed on Schedule 4.14 of the Applicable Disclosure
Schedules, including all amendments or modifications thereto, and written
summaries of all oral Contracts, to the Acquiring Party.
(d) Except as set forth on Schedule 4.14(d) of the Applicable Disclosure
Schedules and except as expressly excluded pursuant to Section 2.2, each
Contract to be assigned hereunder is valid and binding (except to the extent
that the invalidity or nonbinding nature of any Contract would not have a
Material Adverse Effect on the business, assets, financial condition or results
of operations of the Applicable Station); each such Contract is in full force
and effect in accordance with its terms; the Conveying Party has not granted any
material waivers of or forebearances under any such Contract; to the best of the
Conveying Party's knowledge, no third party is in material default in the
performance of any of its obligations under any such Contract, and no event or
circumstance has occurred, which, with the giving of notice or the lapse of time
or both, would constitute a material default by the Conveying Party under any
such Contract; and no consents of any third party are necessary to permit the
assignment by the Conveying Party of such Contracts to the Acquiring Party,
except as disclosed on Schedule 4.14(d) of the Applicable Disclosure Schedules,
and such assignment will not affect the validity or enforceability of any such
Contract or cause any material change in the substantive terms thereof. Those
Contracts listed on Schedule 4.14(d) of the Applicable Disclosure Schedules and
noted with an asterisk are Contracts which, by their terms, require consent in
order to assign such Contracts. Such consent shall be required to be obtained
only as set forth in Sections 6(f) and 7(f).
(e) The AMFM Contracts and the Bison Contracts, as the case may be,
include all Contracts necessary to conduct the business and operation of the
Applicable Station as now conducted, other than Contracts expressly excluded
pursuant to Section 2.2.
4.15 EMPLOYEE BENEFIT MATTERS. Neither the Conveying Party nor any
corporation, trade, business or entity under common control with the Conveying
Party, within six years prior to the Closing, within the meaning of Section
414(b), (c) or (m) of the Code or Section 4001 of ERISA has, within six years
prior to the Closing, sponsored, maintained or contributed to any "employee
benefit plan" as such term is defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") which is subject to Title IV
of ERISA.
17
4.16 LABOR RELATIONS. The Conveying Party is not a party to or subject
to any collective bargaining agreements with respect to an Applicable Station.
The Conveying Party has complied in all material respects with all laws, rules,
and regulations relating to the employment of labor, including those related to
wages, hours, collective bargaining, occupational safety, discrimination, and
the payment of social security and other payroll related taxes and workers'
compensation, and except as described in Schedule 4.16 of the Applicable
Disclosure Schedules, it has not received any written notice alleging that it
has failed to comply in any material respect with any such laws, rules, or
regulations. Except as described in Schedules 4.6 or 4.16 of the Applicable
Disclosure Schedules, no controversies, disputes, or proceedings (including
discrimination claims) are pending or, to the best of the Conveying Party's
knowledge, threatened, between it and any employee (singularly or collectively)
of the Applicable Station. Except as described in Schedule 4.16 of the
Applicable Disclosure Schedules, no labor union or other collective bargaining
unit represents or claims to represent any of the employees of the Applicable
Station. Except as described in Schedule 4.16 of the Applicable Disclosure
Schedules, the Conveying Party has no knowledge of any union campaign being
conducted to represent employees of the Applicable Station or to solicit cards
from employees to authorize a union to request a National Labor Relations Board
certification election with respect to any employees at the Applicable Station.
4.17 LICENSES. Schedule 4.17 of the Applicable Disclosure Schedules
accurately and completely lists material Licenses granted to the Conveying Party
or its Affiliates and used in the operation of the Applicable Station. Except as
set forth on Schedule 4.17 of the Applicable Disclosure Schedules, all of such
Licenses are validly issued and in full force and effect. The Conveying Party or
its Affiliates holds all Licenses necessary to enable it to conduct the business
and operation of the Applicable Station in all material respects as presently
conducted. No judgment, decree, order or notice of violation has been issued by
any Governmental Entity which permits, or would permit, revocation, modification
or termination of any License or which results or could result in any material
impairment of any rights thereunder.
4.18 INTANGIBLE ASSETS. Schedule 4.18 of the Applicable Disclosure
Schedules contains a list of all material Intangible Assets owned by the
Conveying Party or its Affiliates and used or held for use in the operation of
the Applicable Station that have been registered with a Governmental Entity.
Except as set forth in Schedule 4.6 of the Applicable Disclosure Schedules,
there is no pending or, to the best of the Conveying Party's knowledge,
threatened proceeding or litigation affecting or with respect to the Intangible
Assets of the Applicable Station, and the Conveying Party has received no notice
and has no knowledge of any infringement or unlawful use of such property.
4.19 COMPLIANCE WITH LAWS. With respect to each Applicable Station, the
Conveying Party is in material compliance with all applicable federal, state,
local or foreign laws, regulations, statutes, rules, ordinances, directives and
orders and any other requirements of any Governmental Entity applicable to it.
4.20 FCC COMPLIANCE. Except as shown on Schedule 4.20 of the Applicable
Disclosure Schedules, to the best of the Conveying Party's knowledge, the
Applicable Station has been operated
18
at all times in accordance with the terms of the Applicable Station's FCC
Licenses, the Act, and all applicable rules, regulations and policies of the
FCC; the FCC License are not subject to any condition other than conditions
appearing on the face of the authorization itself and conditions applicable to
such licenses generally; all material applications, reports, and other
disclosures required by the FCC to be filed or made with respect to the
Applicable Station have been timely filed or made; the Applicable Station's FCC
Licenses are valid and in full force and effect; all FCC actions with respect to
such FCC Licenses are Final Orders; no application, action or proceeding is
pending for the renewal or modification of any of the Applicable Station's FCC
Licenses; as of the date of this Agreement, there is no investigation or
material complaint pending against the Applicable Station at the FCC; there is
no proceeding pending at the FCC, and there is no outstanding notice of
violation from the FCC as of the date of this Agreement relating to the
Applicable Station; all fees payable to governmental authorities, including FCC
annual regulatory fees, with respect to the Applicable Station's FCC Licenses
have been paid; and no event has occurred which, individually or in the
aggregate, and with or without the giving of notice or the lapse of time or
both, would constitute grounds for revocation thereof.
4.21 ENVIRONMENTAL MATTERS. Without limiting the generality of Section
4.19, except as disclosed on Schedule 4.21 of the Applicable Disclosure
Schedules, there has been no release, nor is there a threat of a release, of any
Hazardous Substance at or from Real Property (which such term as used in this
Section 4.21 and Section 5.15 includes leased as well as owned real property)
used or held for use in the operation of an Applicable Station. Except as
disclosed on Schedule 4.21 of the Applicable Disclosure Schedules, there are no
Hazardous Substances present on or affecting such Real Property except for
ordinary quantities of properly stored Hazardous Substances found in consumer or
commercial products that are used in the normal course of broadcast station
operations, including grounds and building operation and maintenance. For the
purposes of this Section 4.21, Section 5.15 and Sections 9.2 and 9.3, the term
"Hazardous Substance" shall have the meaning set forth in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended from
time to time ("CERCLA"), but shall also include any pollutant, contaminant, or
petroleum product, fraction or distillate as defined by CERCLA or any other
applicable federal, state or local law, and any regulations promulgated
thereunder (which, together with any other law, regulation or ordinance
pertaining to the protection of the environment or public shall be referred to
as the "Environmental Laws"). Without limiting the generality of the foregoing,
except as disclosed on Schedule 4.21 of the Applicable Disclosure Schedules,
neither such Real Property nor equipment or installations on such Real Property
contain polychlorinated biphenyl ("PCBs") or friable asbestos. Except as
disclosed on Schedule 4.21 of the Applicable Disclosure Schedules, there are no
underground storage tanks, whether in use or closed, on or under such Real
Property. The Conveying Party is in compliance in all material respects with all
Environmental Laws and all FCC requirements pertaining to RF radiation and has
obtained all environmental, health and safety permits necessary for the
operation of the Applicable Station, all such permits are in full force and
effect, and the Conveying Party is in compliance with the terms and conditions
of all such permits. Except as disclosed on Schedule 4.21, the Conveying Party
has not received any notice, nor does the Conveying Party have any knowledge of
any administrative or judicial investigations, proceedings
19
or actions with respect to violations alleged, or proved, of any Environmental
Law involving such Real Property.
4.22 FINANCIAL STATEMENTS; BUDGETS.
(a) The Conveying Party has provided the Acquiring Party with true and
complete copies of unaudited statements of income and expenses of the Applicable
Station for its most recent concluded fiscal year and for all full quarters
since elapsed (the "Financial Statements"). Except as disclosed in Schedule 4.22
of the Applicable Disclosure Schedules, the Financial Statements (i) were
prepared in accordance with the books and records of the Applicable Station, and
in conformity with the Conveying Party's internal accounting principles and
policies, consistently applied, (ii) fairly present in all material respects the
information purported to be presented therein as of the dates and for the
respective periods covered thereby; and (iii) reflect the results of operation
of the Station on a stand-alone basis.
(b) The Conveying Party has provided the Acquiring Party with a true and
complete copy of the Conveying Party's month-by-month budget for fiscal year
2000 for the Applicable Station.
4.23 CONDUCT OF BUSINESS IN ORDINARY COURSE. Between December 31, 1999,
and the date of this Agreement, the business and operations of the Applicable
Station have been conducted only in the ordinary course and substantially
consistent with past practice and has not:
(a) suffered any material adverse changes in the business, assets,
properties, financial condition or results of operation of the Conveying Party
pertaining to the Applicable Station, including any damage, destruction or loss
affecting the Assets relating to the Applicable Station; or
(b) made or agreed to make any sale, assignment, lease or other transfer
of any material properties used in connection with the Applicable Station other
than in the ordinary course of business and consistent with past practices.
4.24 INSURANCE. The insurable properties relating to the business of the
Applicable Station and the conduct of the business of the Applicable Station
are, and will be until the Closing Date, in the reasonable judgment of the
Conveying Party, adequately insured.
ARTICLE 5
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 COVENANTS OF THE PARTIES. AMFM and Bison hereby covenant to each
other as follows:
5.2 FCC CONSENT. Following the date of this Agreement, the parties shall
proceed as expeditiously as practicable to file or cause to be filed
applications with the FCC (the "FCC
20
Applications") requesting FCC Consent to the assignment of the FCC Licenses for
the AMFM Station to Bison and applications with the FCC requesting consent to
the assignment of the FCC Licenses for the Bison Station to AMFM. If not
previously submitted, the parties shall file the FCC Applications
contemporaneously as contingent applications not later than ten (10) business
days after the date of this Agreement. AMFM and Bison shall cooperate with each
other in the preparation, filing and prosecution of the FCC Applications, and
each party shall prosecute the FCC Applications in good faith and with due
diligence. Should AMFM or Bison become aware of facts which could reasonably be
expected to affect or delay in a material and adverse manner the FCC Consent,
such party shall promptly notify the other parties in writing and in accordance
with the notice provisions set forth in Section 10.4. If for any reason the
Closing does not occur within the original effective period of the FCC's grants
of the FCC Applications, and if no party shall have terminated this Agreement
under Section 8, the parties shall jointly request extensions of the effective
period of such grants. Each party shall bear the FCC filing fees required to
convey the Station to be conveyed by such party hereunder. It is specifically
understood and agreed by Bison and AMFM that the Closing, the assignment of the
FCC Licenses and the transfer of the Assets are expressly conditioned on and are
subject to the prior consent and approval of the FCC without the imposition of
any conditions materially adverse to either party or their respective Affiliates
(the "FCC Consent").
5.3 COMPLIANCE WITH HSR ACT. AMFM and Bison will (a) each make such
filings as are required under the HSR Act as soon as practicable but in no event
later than ten (10) days following the date hereof, (b) otherwise promptly
comply with the applicable requirements under the HSR Act, including furnishing
all information and filing all documents required thereunder, (c) furnish to
each other copies of those portions of the documents filed which are not
confidential, and (d) cooperate fully and use their reasonable efforts to
expedite compliance with the HSR Act. Each party shall bear the filing fees with
respect to any HSR filing required to acquire the Stations being acquired by
such party under this Agreement.
5.4 CONDUCT OF BUSINESS.
(a) General. During the period from the date hereof to the Closing, each
of the parties shall conduct the business and operations of the Applicable
Station in the ordinary course of business, consistent with current practice.
(b) Prior to Closing. Without limiting the generality of the preamble to
this Section 5.4, each of the parties agree that, except as required or
contemplated by this Agreement or otherwise consented to or approved by the
other party in writing, during the period commencing on the date of this
Agreement and ending on the Closing Date, each party will, with respect to the
Applicable Station owned by it:
(i) maintain the Records relating to the business of the
Applicable Station in the usual, regular and ordinary manner, comply in all
material respects with all laws and contractual obligations applicable to such
Station or to the conduct of the business of such Station and perform all
material obligations relating to the business of such Station;
21
(ii) operate the Applicable Station in conformity with its
respective FCC Licenses, any special temporary authority or program test
authority, the Act and the rules and regulations of any other Governmental
Entity with jurisdiction over such Station, and take all reasonable actions
necessary to maintain the FCC Licenses for such Station in all material
respects;
(iii) refrain from making any material changes in studios or
other structures of the Applicable Station, except for normal repair or
replacement;
(iv) not dispose of any of the KSKY Assets or the KPRZ Assets, as
the case may be (other than for the disposition in the ordinary course of
business, consistent with past practice, of immaterial assets or of assets that
are of no further use to such Station);
(v) not create, assume or permit to exist any Lien upon the KSKY
Assets or the KPRZ Assets, as the case may be, except for Permitted Liens;
(vi) not waive any material right relating to the Applicable
Station or any of the KSKY Assets or the KPRZ Assets, except in the ordinary
course of business consistent with past practice;
(vii) maintain the existing or comparable insurance policies on
the Applicable Station and the KSKY Assets or the KPRZ Assets, as the case may
be;
(viii) refrain from modifying or changing in any material respect
or renewing or entering into any Contract that (i) has a cost or value to the
Applicable Station of $10,000 or more and (ii) is required to be or, if such
Contract had been in existence on the date of this Agreement, would have been
required to be listed on Schedule 4.14 of the Applicable Disclosure Schedules;
and
(ix) timely make all required payments under any Contract to be
assumed pursuant to this Agreement and otherwise pay all liabilities and satisfy
all obligations in accordance with past practice.
5.5 DEEMED CONSENT. If a Conveying Party requests consent to modify,
change, renew or enter into a Contract, the Acquiring Party shall respond within
five (5) business days after receipt of such request or be deemed to have
granted the requested consent or approval. The notice provision of Section 10.4
of this Agreement shall not apply to requests for consent under this Section
5.5. Requests for consent under this Section 5.5 shall be sent in writing to, in
the case of Bison, to Jonathan L. Block, Esq., Bison Media, Inc., 4880 Santa
Rosa Road, Suite 300, Camarillo, California 93012 and, in the case of AMFM, to
Mr. William S. Banowsky, Jr., AMFM Inc., 600 Congress Avenue, Suite 1400,
Austin, Texas 78701 (facsimile no. (513) 340-7890).
5.6 NO SOLICITATION. Between the date hereof and the Closing, no party
nor any of its Affiliates, nor any of its or its Affiliates' directors,
officers, partners, employees, representatives or agents shall, directly or
indirectly, solicit or initiate inquiries or proposals from, or enter into any
22
agreement with respect to, or provide any confidential information to or
participate in any discussions or negotiations with, any corporation,
partnership, person or other entity or group concerning any sale to such party
of all or substantially all of the assets the Applicable Station (whereby
directly or through a merger or sale of stock). The parties will immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any third parties conducted heretofore with respect to any of
the foregoing. Notwithstanding the above, a merger or a sale of substantially
all of the stock or assets of AMFM Inc., with respect to AMFM, including AMFM
Inc.'s pending business combination with Clear Channel Communications, Inc., or
Bison Media, Inc., with respect to Bison (a "Parent Merger"), shall not be
deemed to be a violation of this Section 5.6.
5.7 ACCESS; INFORMATION; CONFIDENTIALITY; PUBLICITY.
(a) Prior to the Closing, each party shall give to the other party and
its representatives full and reasonable access during normal business hours to
all of the party's properties, books, contracts, reports and records including
financial information, in each case relating to such party's Stations, in order
that the parties may have full opportunity to make such investigation as they
desire of such Station, and each party shall furnish the other party with such
information as such other party may reasonably request in connection therewith.
The rights of the parties under this Section 5.7 shall not be exercised in such
a manner as to interfere unreasonably with the business of any party's Station.
(b) Between the date of this Agreement and the Closing, the Conveying
Party shall (i) keep the Acquiring Party reasonably informed of all material
operational matters and business developments with respect to the Conveying
Party's Station, and (ii) furnish the Acquiring Party with any information
customarily prepared by the Conveying Party concerning the financial condition
of the Conveying Party's Station that the Acquiring Party may request.
(c) Subject to the requirements of applicable law, each party shall keep
confidential all information obtained by it with respect to the other party
hereto in connection with this Agreement and the negotiations preceding this
Agreement ("Confidential Information"); provided that, each party hereto may
furnish such Confidential Information to its employees, agents and
representatives who need to know such Confidential Information (including its
financial and legal advisers, its banks and other lenders) (collectively,
"Representatives"). Each party hereto shall, and shall cause each of such
party's Representatives to, use the Confidential Information solely in
connection with the transactions contemplated by this Agreement. If the
transactions contemplated hereby are not consummated for any reason, each party
shall return to such 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.
Notwithstanding anything contained in this Section 5.7, no party shall be
required to keep confidential or return any Confidential Information which: (a)
is known or available through other lawful sources, not bound by any
confidentiality agreement with the disclosing party; (b) is or becomes publicly
known through no fault of the receiving party or its agents; (c) is required to
be disclosed pursuant to an order or request of a judicial or governmental
authority (provided the disclosing party is given reasonable
23
prior notice of the order or request and the purpose of the disclosure); or (d)
is developed by the receiving party independently of the disclosure by the
disclosing party. The obligations of the parties under this Section 5.7(c) shall
survive either the Closing or the termination of this Agreement.
(d) No news release or other public announcement pertaining to the
transactions contemplated by this Agreement will be made by or on behalf of any
party hereto without the prior written approval of the other party (such consent
not to be unreasonably withheld or delayed). Notwithstanding the provisions of
the preceding sentence, either party hereto or its Affiliates (a "Releasing
Party") may, in accordance with its legal obligations, including but not limited
to filings permitted or required by the Securities Act of 1933, the Securities
and Exchange Act of 1934, the New York Stock Exchange and other similar
regulatory bodies, make (i) such press releases and other public statements and
announcements ("Releases") as the Releasing Party deems necessary or appropriate
in connection with this Agreement and the transactions contemplated hereby, and
(ii) any and all statements the Releasing Party deems in its sole judgment to be
appropriate in any and all filings, prospectuses and other similar documents.
The Releasing Party shall use reasonable efforts to provide the other parties
hereto with a copy of any Releases before any publication of same, provided
that, if the content of the Release is, in the sole judgment of the Releasing
Party reasonably exercised, substantially similar to the content of a Release
previously provided to the other parties, the Releasing Party shall have no
obligation to provide the other party with a copy of such Release. The other
party may make comments to the Releasing Party with respect to any such Releases
provided to them; provided, however, that the Releasing Party is not required to
incorporate any such comments into the Releases.
5.8 INCONSISTENT ACTIONS. Prior to the Closing, no party shall take any
action which is materially inconsistent with its obligations under this
Agreement, or that could hinder or delay in any material respect the
consummation of the transactions contemplated by this Agreement.
5.9 COOPERATION. Each party shall cooperate fully with each other and
its respective counsel and accountants in connection with any actions required
to be taken as part of its obligations under this Agreement, and each party will
use its reasonable efforts to consummate the transactions contemplated hereby
and to fulfill its obligations hereunder; provided, however, that no party shall
be required to make any payments to any third party in order to obtain the
consent of any such third party.
5.10 CONTROL OF STATIONS. Prior to Closing, no party shall, directly or
indirectly, control, supervise, or direct or attempt to control, supervise or
direct the operations of the other party's Station; those operations, including
complete control and supervision of all Station programs, employees, and
policies, shall be the sole responsibility of the Station's licensee.
5.11 RISK OF LOSS. The risk of any loss, damage, impairment,
confiscation, or condemnation of any of the KSKY Assets from any cause
whatsoever shall be borne by AMFM at all times prior to the Closing. The risk of
any loss, damage, impairment, confiscation, or condemnation of any of the KPRZ
Assets from any cause whatsoever shall be borne by Bison at all
24
times prior to the Closing. If there is any loss, damage, impairment,
confiscation, or condemnation of or to any of such assets, AMFM or Bison, as the
case may be, shall repair, replace or restore such assets (the "Damaged Assets")
to their prior condition as represented in this Agreement as soon thereafter as
possible; provided, however, that no party shall have any obligation to repair
or replace any immaterial or obsolete asset no longer necessary or useful for
the continued operation of a Station consistent with past practice. If AMFM or
Bison, as the case may be (the "Repairing Party"), is unable to repair or
replace the Damaged Assets by the date on which the Closing would otherwise
occur under this Agreement, then the Repairing Party shall reimburse all
reasonable costs incurred by the Acquiring Party in repairing or replacing the
Damaged Assets after the Closing.
5.12 THIRD PARTY CONSENTS. Subject to Section 5.7, between the date of
this Agreement and the Closing, each Conveying Party shall use its reasonable
efforts to obtain the consent of any third party necessary for the assignment of
any contract or agreement to be assigned hereunder. In the event of a consent or
waiver required with respect to the assignment of a contract that has not been
obtained before the Closing, and the applicable party waives the right to
receive such consent or waiver (to the extent required in order to close the
transactions contemplated herein), then each Conveying Party shall use its
commercially reasonable efforts to provide the other party with the benefits of
any such contract, including without limitation, permitting such other party to
enforce any rights of AMFM or Bison under such contract.
5.13 INTENTIONALLY OMITTED.
5.14 INTENTIONALLY OMITTED.
5.15 ESTOPPEL CERTIFICATES. Each Conveying Party shall use its
commercially reasonable efforts to obtain estoppel certificates from landlords
with respect to leased Real Property to be conveyed hereunder.
5.16 ENVIRONMENTAL ASSESSMENTS.
(a) Within forty five (45) days after the date of this Agreement, the
Acquiring Party may cause at its expense a Phase I environmental assessment
audit (the "Phase I Environmental Assessment") of the Real Property (which
includes leasehold interests) and the improvements and other Assets located
thereon to be acquired by such party to be completed. The Acquiring Party shall
provide the Conveying Party with a copy of the report of any Phase I
Environmental Assessment so completed within fifteen (15) business days of its
receipt by the Acquiring Party, but in no event later than sixty (60) days after
the date of this Agreement, and at the same time the Acquiring Party shall give
the Conveying Party notice of any matter disclosed by such Phase I Environmental
Assessment concerning (i) the presence of Hazardous Substances on or affecting
the Real Property or other Assets to be conveyed hereunder; (ii) any apparent
violation of Environmental Laws upon or associated with such Real Property or
other Assets to be conveyed hereunder; or (iii) any other condition which may
constitute a breach of Section 4.21 (collectively, "Environmental Exceptions").
25
(b) After giving notice of such Environmental Exceptions to the
Conveying Party, the Acquiring Party may, at its expense, undertake a Phase II
environmental assessment (the "Phase II Environmental Assessment") of the
affected Real Property or other Asset to be conveyed hereunder, which shall be
completed no later than thirty (30) days of the giving of such notice; provided,
however, the Conveying Party is able to obtain written consent for the Phase II
Environmental Assessment from the landlord with respect to any leased Real
Property; and provided further, that the Conveying Party approves the scope of
work for the Phase II Environmental Assessment of any of its Real Property,
whether owned or leased, such approval not to be unreasonably withheld. The
Phase II Environmental Assessment shall include an estimate of the total cost of
remediating all such Environmental Exceptions (the "Estimated Remediation
Costs"). The Acquiring Party shall provide the Conveying Party with a copy of
the Phase II Environmental Assessment within fifteen (15) business days of
receipt by Conveying Party, but in no event later than seventy-five (75) days
after the date of this Agreement and at the same time shall give the Conveying
Party notice of any matters revealed by the Phase II Environmental Assessment
that adversely affect the use of the Real Property as currently used by the
Conveying Party (the "Phase II Environmental Exceptions").
(c) The Conveying Party shall cure or remove any Phase II Environmental
Exceptions and/or any and all environmental matters or conditions disclosed by
the Conveying Party on such party's Disclosure Schedule ("Disclosed
Environmental Matters"), within forty-five (45) days from the date of the
Acquiring Party's notice (in the case of the Phase II Environmental Exceptions),
and prior to Closing (in the case of the previously Disclosed Environmental
Matters); provided, however, that if the Conveying Party reasonably determines
that the cost of removing any such Phase II Environmental Exceptions would
exceed $240,000 with respect to the Applicable Station (unless the Conveying
Party agrees in writing to correct such Phase II Environmental Exceptions at the
Conveying Party's sole costs and expense) then the Conveying Party shall notify
the Acquiring party within five (5) days after such determination, whereupon the
Acquiring Party shall have the right, exercisable by written notice given to the
Conveying Party within five (5) business days after receipt of the Acquiring
Party's notice, to elect to: (i) terminate this Agreement or (ii), in the case
of owned Real Property, to require the Conveying Party to enter into a 99-year
lease or other instrument providing the Acquiring Party with right of access for
such property, effective as of the Closing Date, at a rental rate of $1 per year
plus reimbursement of all costs and ownership of such property (which would be
traditionally charged to a lessee under a "Triple Net" lease) other than costs
arising from an Environmental Exception with respect to such property, or, in
the case of leased Real Property, not to assume such property, or, in the case
of leased Real Property, not to assume such lease in which event the Conveying
Party shall provide the Acquiring Party a functionally equivalent alternative.
Notwithstanding anything contained herein, with respect to the Conveying Party's
obligation to cure, unless the Acquiring Party elects (i) or (ii) above, in the
event the Conveying Party cannot reasonably cure or remove the Phase II
Environmental Exceptions or the Disclosed Environmental matters within the
45-day period, or prior to Closing (as applicable), then the parties shall
proceed to close the transactions contemplated hereby. Whether cured or not, any
costs and expenses incurred to cure or remove the Phase II Environmental
Exceptions or the Disclosed Environmental Matters as of the Closing or
thereafter (which in no event shall exceed an aggregate cap of $240,000 for each
Conveying Party, unless otherwise agreed by the parties) shall be applied
26
to the Conveying Party's indemnification cap of $600,000 ("Environmental Credit
Amount") set forth in Section 9.4; provided that, any indemnification
obligations of the Conveying Party hereunder, including, but not limited to,
those set forth in Sections 9.2 and 9.3, shall not be deemed waived or otherwise
affected by such decision to proceed to Closing in light of the known Phase II
Environmental Exceptions or Disclosed Environmental Conditions, subject to the
Environmental Credit Amount. The failure of the Acquiring Party to exercise such
option within ninety (90) days of the date of this Agreement shall constitute an
irrevocable waiver of the right of the Acquiring Party to terminate this
Agreement under this Section 5.16.
5.17 REAL PROPERTY SURVEYS AND TITLE COMMITMENTS.
(a) Within sixty (60) days after the date of this Agreement, the
Acquiring Party may at its expense obtain for the Real Property (either owned or
leased) to be conveyed to the Acquiring Party hereunder (i) a current survey,
prepared by a licensed surveyor and conforming to current ALTA Minimum Detail
Requirements for Land Title Surveys, disclosing the location of all improvements
(including guy wire and anchors), easements, party walls, sidewalks, roadmap,
utility lines and other matters customarily shown on such surveys, and showing
access affirmatively to public streets and roads (the "Surveys"), and (ii)
standard ALTA Form B commitments for owner's or lessor's title insurance for the
Real Property (the "Title Commitments").
(b) The Acquiring Party shall provide the Conveying Party with a copy of
the Surveys and Title Commitments within fifteen (15) business days of receipt
by Conveying Party, but in no event later than seventy-five (75) days after the
date of this Agreement and at the same time shall give the Conveying Party
notice of any exceptions or defects to title in the Title Commitments or matters
revealed by the Surveys that materially and adversely affect the use of the Real
Property as currently used by the Conveying Party (the "Objectionable
Exceptions"). If the Acquiring Party fails to give such notice in a timely
manner, the Acquiring Party shall be deemed to have accepted all title
exceptions report in the Title Commitments or matters revealed by the Surveys
other than the Objectionable Exceptions expressly set forth in the notice.
(c) The Conveying Party shall cure or remove any Objectionable Exception
within 45 days from the date of the Acquiring Party's notice; provided, however,
that if the Conveying Party reasonably determines that the cost of removing any
such Objectionable Exception would exceed $240,000 with respect to a particular
Station, or that the Conveying Party will be unable to cure or remove an
Objectionable Exception within such 45-day period, then the Conveying Party
shall notify the Acquiring Party within fifteen (15) days after such
determination, whereupon the Acquiring Party shall have the right, exercisable
by written notice given to the Conveying Party within fifteen (15) business days
after receipt of the Acquiring Party's notice, to elect (i) to agree to accept
the real property covered by such Title Commitment or Survey, subject to the
Objectionable Exceptions, or (ii) to terminate this Agreement. If the Acquiring
Party fails to elect option (i) or (ii) above, then the Acquiring Party shall be
deemed to have elected option (i).
27
(d) Notwithstanding the foregoing, none of the following shall
constitute an Objectionable Exception: (i) the preprinted or standard exceptions
on the current ALTA owner's or lessee's form; (ii) Permitted Liens; and (iii)
any matters disclosed in Schedule 4.13 of the Applicable Disclosure Schedule;
provided, however, that any Lien securing a monetary obligation (other than such
Lien arising under a Contract assumed pursuant to Section 2.4) shall be deemed
an Objectionable Exception whether or not the Acquiring Party gives written
notice of such, and shall be removed by the Conveying Party at or before the
Closing.
(e) Nothing in Section 5.15 or this Section 5.16 shall be deemed to
extend the date on which the Closing would otherwise occur under this Agreement.
5.18 INVESTIGATION; NO OTHER REPRESENTATIONS OR WARRANTIES.
(a) The Acquiring Party acknowledges and agrees that it has made its own
inquiry and investigation into, and, based thereon, has formed an independent
judgment concerning, the Station and its business and operations, and Acquiring
Party has been furnished with or given full access to such information about the
Station and its business and operations as it has requested. Acquiring Party has
not received from the Conveying Party any projections related to the Station or
its business or operations.
(b) The Acquiring Party agrees that, except for the representations and
warranties made by the Conveying Party and expressly set forth in this
Agreement, neither the Conveying Party nor any of its Affiliates or their
respective representatives has made (and shall not be construed as having made)
to Acquiring Party or to any of its Affiliates or any respective representatives
thereof any representation or warranty of any kind.
(c) Conveying Party agrees that, except for the representations and
warranties made by the Acquiring Party and expressly set forth in this
Agreement, neither the Acquiring Party nor any of its Affiliates or their
respective representatives has made (and shall not be construed as having made)
to Conveying Party or to any of its Affiliates or any respective representatives
thereof any representation or warranty of any kind.
5.19 BULK SALES. Each of the parties to this Agreement hereby waive
compliance with any applicable bulk sale laws by the transferor to such party of
assets hereunder.
ARTICLE 6
CONDITIONS OF BISON
6.1 CONDITIONS OF BISON'S OBLIGATIONS. Unless waived by Bison in
writing, all obligations of Bison under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions:
28
(a) Representations and Warranties and Covenants. The representations
and warranties of AMFM set forth in this Agreement shall be true and correct
(provided that any representation or warranty contained herein that is qualified
by a materiality or material adverse effect qualification shall not be so
qualified for purposes of determining the existence of any breach thereof by
AMFM) as of the date of this Agreement and as of the Closing Date as though made
on and as of the Closing Date (unless otherwise limited to another date), and
AMFM shall have performed in all material respects all obligations required to
be performed by it under this Agreement (provided that any covenant or agreement
contained herein that is qualified by a materiality or material adverse effect
qualification shall not be so qualified for purposes of determining the
existence of any breach thereof by AMFM) prior to the Closing Date, except, with
respect to such representations, warranties, and covenants, (i) for changes that
are a result of actions of AMFM that are not prohibited by this Agreement or
(ii) to the extent that any inaccuracies in such representations and warranties
and any breaches of such performance that have not been waived by Bison in the
aggregate would not have a Material Adverse Effect. Bison shall have received a
certificate to the foregoing effect signed on behalf of AMFM by the chief
executive officer or by the chief financial officer of AMFM.
(b) Approvals of Governmental Authorities; FCC Consent. Any and all
governmental approval necessary to consummate the transactions contemplated by
this Agreement, including FCC Consent shall have been obtained.
(c) HSR Act. If legally required, all filings with the Federal Trade
Commission (the "FTC") and the DOJ pursuant to the HSR Act shall have been made
and all applicable waiting periods with respect to such filings (including any
extensions thereof) shall have expired or been terminated and no actions (or if
no HSR Act filing is required, no objection) shall have been instituted which
are pending on the Closing Date by the FTC or DOJ challenging or seeking to
enjoin the consummation of the transactions contemplated by this Agreement.
(d) No Injunctions. No order shall have been issued by any Governmental
Entity of competent jurisdiction restraining, prohibiting or making unlawful any
of the transactions contemplated by this Agreement.
(e) No Material Adverse Change. Since the date hereof, no loss or
materially adverse modification of any material FCC License for the AMFM Station
shall have occurred.
(f) Consents. The consents designated with an asterisk as "consents
required as a condition of Closing" on Schedule 4.14 of the AMFM Disclosure
Schedules shall have been obtained and shall be in form and substance reasonably
satisfactory to Bison.
(g) Closing Documents. AMFM shall have executed and delivered to Bison
the documents required to be executed and delivered by it pursuant to Section
3.2.
29
(h) Opinion of Counsel to AMFM. AMFM shall have delivered to Bison an
opinion or opinions of counsel reasonably acceptable to Bison dated as of the
Closing Date and substantially in the form and substance of Exhibits D and E.
ARTICLE 7
CONDITIONS OF AMFM
7.1 CONDITIONS TO AMFM'S OBLIGATIONS. Unless waived by AMFM in writing,
all obligations of AMFM under this Agreement are subject to the fulfillment,
prior to or at the Closing, of each of the following conditions:
(a) Representations and Warranties and Covenants. The representations
and warranties of Bison set forth in this Agreement shall be true and correct
(provided that any representation or warranty contained herein that is qualified
by a materiality or material adverse effect qualification shall not be so
qualified for purposes of determining the existence of any breach thereof by
Bison) as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date (unless otherwise limited to another date),
and Bison shall have performed in all material respects all obligations required
to be performed by it under this Agreement (provided that any covenant or
agreement contained herein that is qualified by a materiality or material
adverse effect qualification shall not be so qualified for purposes of
determining the existence of any breach thereof by Bison) prior to the Closing
Date, except, with respect to such representations, warranties, and covenants,
(i) for changes that are a result of actions of Bison that are not prohibited by
this Agreement or (ii) to the extent that any inaccuracies in such
representations and warranties and any breaches of such performance that have
not been waived by AMFM in the aggregate would not have a Material Adverse
Effect. AMFM shall have received a certificate to the foregoing effect signed on
behalf of Bison by the chief executive officer or by the chief financial officer
of Bison.
(b) Approvals of Governmental Authorities; FCC Consent. Any and all
governmental approvals necessary to consummate the transactions contemplated by
this Agreement, including FCC Consent, shall have been obtained.
(c) HSR Act. If legally required, all filings with the FTC and the DOJ
pursuant to the HSR Act shall have been made and all applicable waiting periods
with respect to such filings (including any extensions thereof) shall have
expired or been terminated and no actions shall have been instituted which are
pending on the Closing Date by the FTC or DOJ challenging or seeking to enjoin
the consummation of the transactions contemplated by this Agreement.
(d) No Injunctions. No order shall have been issued by any Governmental
Entity of competent jurisdiction restraining, prohibiting, or making unlawful
any of the transactions contemplated by this Agreement.
30
(e) No Material Adverse Change. Since the date hereof, no loss or
materially adverse modification of any material FCC License for the Bison
Station shall have occurred.
(f) Consents. The consents designated with an asterisk as "consents
required as a condition of Closing" on Schedules 4.14 of the Bison Disclosure
Schedules shall have been obtained and shall be in form and substance reasonably
satisfactory to AMFM.
(g) Closing Documents. Bison shall have executed and delivered to AMFM
the documents required to be executed and delivered by it pursuant to Section
3.2.
(h) Opinion of Counsel to Bison. Bison shall have delivered to AMFM an
opinion or opinions of counsel reasonably acceptable to AMFM dated the Closing
Date and substantially in the form and substance of Exhibits D and E.
ARTICLE 8
TERMINATION AND OPPORTUNITY TO CURE
8.1 TERMINATION. This Agreement may be terminated prior to the Closing
by written agreement of AMFM and Bison or by either AMFM or Bison, if the
terminating party is not then in material default of this Agreement, upon
written notice to the other party, upon the occurrence of any of the following:
(a) Conditions. If on the Upset Date (as defined in Section 8.1(b)) any
of the conditions precedent to the obligations of the terminating party set
forth in this Agreement have not been satisfied or waived in writing by the
terminating party.
(b) Upset Date. If the Closing shall not have occurred on or before the
first anniversary of the date of this Agreement (the "Upset Date").
(c) Breach. If the party on the other side of an exchange with the
terminating party is in material breach of this Agreement and the breach remains
uncured notwithstanding the opportunity to cure provisions of Section 8.2
hereof.
(d) Environmental and Real Estate. If a party has the right to terminate
pursuant to Sections 5.16 and/or 5.17, respectively.
(e) Denial of FCC Approval. If the FCC denies the FCC Application or
designates it for a trial-type hearing.
(f) Injunction; Restraining Order. If any court of competent
jurisdiction shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement.
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8.2 OPPORTUNITY TO CURE. No party shall have the right to terminate this
Agreement as a result of the other party's default unless the terminating party
shall have given the defaulting party written notice specifying in reasonable
detail the nature of the default and shall have afforded the defaulting party
thirty (30) business days to cure the default (the "Cure Period").
8.3 LIABILITY. In no event shall termination of this Agreement relieve
any party of any liability for breaches of this Agreement prior to termination.
Articles 1, 5, 8 shall survive the termination of this Agreement.
ARTICLE 9
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION; AND REMEDIES
9.1 SURVIVAL; SOLE REMEDY. All representations and warranties contained
in this Agreement shall survive the Closing until the first anniversary of the
Closing. In the event notice of any claim is given by a party, the right to
indemnification with respect thereto shall survive until such claim is finally
resolved and any obligations thereto are fully satisfied. Any investigations by
or on behalf of any party hereto shall not constitute waiver as to the
enforcement of any representation, warranty, or covenant contained in this
Agreement. No notice or information delivered by a party shall affect another
party's right to rely on any representation or warranty made by the party
providing such notice or information or relieve such party of any obligations
under this Agreement as a result of a breach of any of its representations and
warranties. Following the Closing, a party's sole remedy for breach of this
Agreement shall be the right to indemnification pursuant to Section 9.2 or 9.3,
as the case may be.
9.2 INDEMNIFICATION BY AMFM OF BISON. Notwithstanding the Closing, but
from and after the Closing, AMFM hereby agrees, subject to Section 9.4(c), to
indemnify and hold Bison harmless against and with respect to, and shall
reimburse Bison for:
(a) Breach. Any and all losses, liabilities, or damages resulting from
any untrue representation or breach of warranty or nonfulfillment of any
covenant by AMFM contained herein or in any certificate, documents, or
instrument delivered to Bison hereunder.
(b) Obligations. Any and all obligations of AMFM not assumed by Bison
pursuant to the terms of this Agreement, including obligations under any bulk
sales law applicable to the transfer of the KSKY Assets hereunder.
(c) Ownership. Any and all losses, liabilities, or damages resulting
from the operation or ownership of the AMFM Station prior to the Closing Date,
including any and all liabilities arising under the Licenses for the AMFM
Station or the AMFM Contracts which relate to events occurring prior to the
Closing Date or the operation or ownership of the Bison Station on and after the
Closing
32
Date, including any and all liabilities arising under the Licenses for the Bison
Station or the Bison Contracts which relate to events occurring on or after the
Closing Date.
(d) Legal Matters. Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in investigating
or attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
9.3 INDEMNIFICATION BY BISON OF AMFM. Notwithstanding the Closing, but
from and after the Closing, subject to Section 9.4(c), Bison hereby agrees to
indemnify and hold AMFM harmless against and with respect to, and shall
reimburse AMFM for:
(a) Breach. Any and all losses, liabilities, or damages result from any
untrue representation or breach of warranty or nonfulfillment of any covenant by
Bison contained herein or in any certificate, document, or instrument delivered
to AMFM hereunder.
(b) Obligations. Any and all obligations of Bison not assumed by AMFM
pursuant to the terms of this Agreement, including obligations under any bulk
sales law applicable to the transfer of the KPRZ Assets hereunder.
(c) Ownership. Any and all losses, liabilities, or damages resulting
from the operation or ownership of the Bison Station prior to the Closing Date,
including any and all liabilities arising under the Licenses for the Bison
Station or the Bison Contracts which relate to events occurring prior to the
Closing Date, or the operation or ownership of the AMFM Station on and after the
Closing Date, including any and all liabilities arising under the Licenses for
the AMFM Station or the AMFM Contracts which relate to events occurring on or
after the Closing Date.
(d) Legal Matters. Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses, including reasonable legal
fees and expenses, incident to any of the foregoing or incurred in investigating
or attempting to avoid the same or to oppose the imposition thereof, or in
enforcing this indemnity.
9.4 PROCEDURE FOR INDEMNIFICATION. The procedure for indemnification
shall be as follows:
(a) Third-Party Claims. A party seeking indemnification (an "Indemnified
Party") shall give prompt written notice to any the party who is obligated to
provide indemnification under Section 9.2 or 9.3 (an "Indemnifying Party") of
the commencement or assertion of any action, proceeding, demand, or claim by a
third party (collectively, a "third-party action") in respect of which such
Indemnified Party shall seek indemnification hereunder. Any failure so to notify
an Indemnifying Party shall not relieve such Indemnifying Party from any
liability that it may have to such Indemnified Party under this Article 9 unless
the failure to give such notice materially and adversely prejudices such
Indemnifying Party. The Indemnifying Party shall have the right to
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assume control of the defense of, settle, or otherwise dispose of such
third-party action on such terms as it deems appropriate; provided, however,
that:
(i) The Indemnified Party shall be entitled, at its own expense,
to participate in the defense of such third-party action (provided, however,
that the Indemnifying Party shall pay the attorneys' fees of the Indemnified
Party if (a) the employment of separate counsel shall have been authorized in
writing by any such Indemnifying Party in connection with the defense of such
third-party action, (b) the Indemnifying Party shall not have employed counsel
reasonably satisfactory to the Indemnified Party to have charge of such
third-party action, (c) the Indemnified Party shall have reasonably concluded
that there may be defenses available to such Indemnified Party that are
different from or additional to those available to the Indemnifying Party, or
(d) the Indemnified Party's counsel shall have advised the Indemnified Party in
writing, with a copy delivered to the Indemnifying Party, that there is a
material conflict of interest that could violate applicable standards of
professional conduct to have common counsel);
(ii) The Indemnifying Party shall obtain the prior written
approval of the Indemnified Party before entering into or making any settlement,
compromise, admission, or acknowledgment of the validity of such third-party
action or any liability in respect thereof if, pursuant to or as a result of
such settlement, compromise, admission, or acknowledgment, injunctive or other
equitable relief would be imposed against the Indemnified Party or if, in the
opinion of the Indemnified Party, such settlement, compromise, admission, or
acknowledgment could have a Material Adverse Effect on its business;
(iii) No Indemnifying Party shall consent to the entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by each claimant or plaintiff to each Indemnified Party
of a release from all liability in respect of such third-party action; and
(iv) The Indemnifying Party shall not be entitled to control (but
shall be entitled to participate at its own expense in the defense of), and the
Indemnified Party shall be entitled to have sole control over, the defense or
settlement, compromise, admission, or acknowledgment of any third-party action
(a) as to which the Indemnifying Party fails to assume the defense within a
reasonable length of time or (b) to the extent the third-party action seeks an
order, injunction, or other equitable relief against the Indemnified Party
which, if successful, would materially adversely affect the business,
operations, assets, or financial condition of the Indemnified Party; provided,
however, that the Indemnified Party shall make no settlement, compromise,
admission, or acknowledgment that would give rise to liability on the part of
any Indemnifying Party without the prior written consent of such Indemnifying
Party.
The parties hereto shall extend reasonable cooperation in connection with the
defense of any third-party action pursuant to this Article 9 and, in connection
therewith, shall furnish such records, information, and testimony and attend
such conferences, discovery proceedings, hearings, trials, and appeals as may be
reasonably requested.
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(b) Direct Claims. In any case in which an Indemnified Party seeks
indemnification hereunder which is not subject to Section 9.4(a) because no
third-party action is involved, the Indemnified Party shall notify the
Indemnifying Party in writing of any Indemnified Costs which such Indemnified
Party claims are subject to indemnification under the terms hereof. Subject to
the limitations set forth in Section 9.4(c), the failure of the Indemnified
Party to exercise promptness in such notification shall not amount to a waiver
of such claim unless the resulting delay materially prejudices the position of
the Indemnifying Party with respect to such claim.
(c) Limitations on Indemnification.
(i) Any indemnity payment hereunder shall be limited to the
extent of the actual loss or damage suffered by the Indemnified Party (but shall
be grossed up to offset any federal or state income taxes incurred by the
Indemnified Party in connection with the receipt of such indemnity payment) and
shall be reduced by the amount of any recovery by the Indemnified Party from any
third party, including any insurer. No such indemnity payment shall be reduced
by the amount of any tax benefits received.
(ii) With respect to breaches of the representations and
warranties herein, no party shall be entitled to indemnification hereunder
unless and until the amount for which indemnification is owing exceeds $50,000
in the aggregate for all such matters; provided, however, that if such amount
exceeds $50,000 the Indemnifying Party shall be liable to the Indemnified Party
for the entirety of the amount and not just that portion in excess of $50,000.
(iii) The aggregate liability of an Indemnifying Party pursuant
to this Section 9 shall be limited to $600,000 (as may be adjusted pursuant to
Section 5.16, plus any gross up amounts necessary to offset taxes as provided in
Section 9.4(c)(i)), provided that there shall be no limit on liability with
respect to liabilities assumed by an Indemnifying Party pursuant to this
Agreement or with respect to breaches of covenants contained in Sections 2.4,
3.3, 3.4, 5.3, 5.11, 10.1 and 10.2 or the representations and warranties
contained in Section 4.20). Each party hereto acknowledges and agrees that,
after the Closing, notwithstanding any other provision of this Agreement to the
contrary, such party's sole and exclusive remedy with respect to any and all
claims relating to the subject matter of this Agreement and the transactions
contemplated herein shall be in accordance with, and be limited by, the
provisions set forth in this Section 9. No party shall be entitled to
indemnification hereunder for any claim arising from the breach by the other
party of its representations and warranties unless asserted against the
Indemnifying Party on or before 5:00 p.m., Dallas, Texas time on the first
anniversary of the Closing Date.
9.5 Specific Performance. The parties recognize that if either party
refuses to close as and when required under the provisions of this Agreement,
monetary damages will not be adequate to compensate the other parties for their
injury. Each party shall therefore be entitled, in addition to a right to
collect money damages, to obtain specific performance of the terms of this
Agreement. If any action is brought by AMFM or Bison to enforce this Agreement,
the other party shall waive the defense that there is an adequate remedy at law.
Any party shall have the right to obtain specific
35
performance of the terms of this Agreement without being required to prove
actual damages, post bond or furnish other security.
ARTICLE 10
GENERAL PROVISIONS
10.1 EXPENSES. Except as otherwise expressly provided in this Agreement,
each party shall bear its own legal, accounting and other expenses in connection
with the negotiation, preparation and consummation of this Agreement and the
transactions contemplated hereby.
10.2 SALES TAXES. AMFM shall pay any and all taxes that may be imposed
by any taxing authority in the nature of sales or use taxes as a result of the
transfer of the KSKY Assets from AMFM to Bison. Bison shall pay any and all
taxes that may be imposed by any taxing authority in the nature of sales or use
taxes as a result of the transfer of the KPRZ Assets from Bison to AMFM.
10.3 BENEFIT OF AGREEMENT; ASSIGNMENT. The terms of this Agreement shall
be enforceable and binding upon, and inure to the benefit of, the parties
hereto, their heirs, successors and assigns. No party shall assign its interest
under this Agreement, by operation of law or otherwise, without the prior
written consent of the other party (except in the case of a Parent Merger, where
no such consent is required), such consent not to be unreasonably delayed or
withheld; provided, however, if Bison determines that in order to make certain
the consummation of the transactions contemplated hereby on or before the Upset
Date, it would be advisable for Bison to assign and/or delegate all or any
portion of its right and obligations under this Agreement, then Bison shall have
the right to assign and/or delegate all or any portion of its rights and
obligations under this Agreement; however, no such assignment and/or delegation
shall relieve Bison of its obligations hereunder in the event that its assignee
fails to perform the obligations delegated, and upon the written request of
Bison, AMFM shall take such actions as are reasonably delegated, and upon the
written request of Bison, AMFM shall take such actions as are reasonably
requested by Bison to effectuate the same; and provided, further, if AMFM
determines that in order to make certain the consummation of the transactions
contemplated hereby on or before the Upset Date, it would be advisable for AMFM
to assign and/or delegate all or any portion of its rights and obligations under
this Agreement, then AMFM shall have the right to assign and/or delegate all or
any portion of its rights and obligations under this Agreement, then AMFM shall
have the right to assign and/or delegate all or any portion of its rights and
obligations under this Agreement, however, no such assignment and/or delegation
shall relieve AMFM of its obligations hereunder in the event that its assignee
fails to perform the obligations delegated, and upon the written request of
AMFM, Bison shall take such actions as are reasonably requested by Bison to
effectuate the same.
10.4 NOTICES. Except as provided in Section 5.5 (Deemed Consent), all
notices, requests, demands and other communications which are required or may be
given under this Agreement, shall be in writing, and addressed as follows:
36
If to AMFM: c/o AMFM Inc.
600 Congress Avenue, Suite 1400
Austin, Texas 78701
Attention: William S. Banowsky, Jr.
Telephone: (512) 340-7800
Facsimile: (512) 340-7890
with copies to: Vinson & Elkins L.L.P.
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2975
Attention: Michael D. Wortley
Telephone: (214) 220-7732
Facsimile: (214) 220-7716
If to Bison : c/o Salem Communications Corporation
Bison Media, Inc.
4880 Santa Rosa Road
Suite 300
Camarillo, California 93012
Attn: Jonathan L. Block, Esq.
Telephone: (805) 987-0400 ext. 106
Facsimile: (805) 384-4505
Any such notice, request, demand or communication shall be deemed to have been
duly delivered and received (a) upon hand delivery thereof during business
hours, (b) on the next business day following delivery to a reliable or
recognized air freight delivery service, or (c) on the date of transmission, if
sent by facsimile during normal business hours (but only if a hard copy is also
sent by overnight courier), but in each case only if sent in the same manner to
all persons entitled to receive notice or a copy. Any party, with written notice
to the other, may change the place for which all further notices to such party
shall be sent. All costs and expenses for the delivery of notices hereunder
shall be borne and paid for by the delivering party.
10.5 ENTIRE AGREEMENT; EXHIBITS; AMENDMENT; WAIVER. Except as herein
expressly provided, this Agreement embodies the entire agreement and
understanding between AMFM and Bison and supersedes all prior agreements and
understandings, whether oral or in writing, with respect to the subject matter
hereof. Any Annex, Exhibit, Schedule, collateral documents or instruments
attached to this Agreement or to be provided at the Closing in the form of an
exhibit attached to this Agreement, shall be deemed a part of this Agreement and
incorporated herein, where applicable, as if fully set forth herein. Any matter
that is disclosed in a Schedule to this Agreement in such a way as to make its
relevance to the information called for by another Schedule readily apparent
shall be deemed to have been included in such other Schedule, notwithstanding
the omission of an appropriate cross-reference. This Agreement (including any
Annex, Schedule or
37
Exhibit hereto) may not be amended, supplemented or otherwise modified, nor may
any party here to be relieved of any of its liabilities or obligations
hereunder, except by a written instrument duly executed by the parties hereto.
Any such written instrument entered into in accordance with the provisions of
the preceding sentence shall be valid and enforceable notwithstanding the lack
of separate legal consideration therefor. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and
executed by the party so waiving. The waiver by any party here of a breach of
any provision of this Agreement shall no operate or be construed as a waiver of
any subsequent breach.
10.6 GOVERNING LAW; SEVERABILITY; ATTORNEYS' FEES. This Agreement shall
be construed and enforced in accordance with the laws of the State of Texas
without reference to the conflict of law principles thereof. All agreements and
covenants herein are severable. In the event that any provision of this
Agreement should be held to be unenforceable, the validity and enforceability of
the remaining provisions hereof shall not be affected thereby. In the event of a
dispute between or among the parties hereto arising out of or related to this
Agreement or the interpretation or enforcement of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
expenses from the other party.
10.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when taken together, shall have the same effect as
if the signature on each counterpart were upon the same instrument.
10.8 DIRECTOR AND OFFICER LIABILITY. Other than as an assignee of this
Agreement, neither any direct or indirect holder of equity interests in Bison or
AMFM, nor any past, present or future director, officer, employee, agent or
affiliate of Bison or AMFM or of any such holder, shall have any liability or
obligation of any nature whatsoever in connection with or under this Agreement
or any agreement contemplated hereby or in connection with the transactions
contemplated by this Agreement or any such other agreement, and each party
hereby waives and releases all claims of any such liability and obligation.
10.9 NO REVERSIONARY INTEREST. The parties expressly agree, pursuant to
Section 73.1150 of the FCC's rules, that neither party will retain any right to
reassignment of any of the FCC Licenses in the future, or to operate or use the
facilities of the Stations for any period beyond the Closing Date.
10.10 REFERENCES AND TITLES. All references in this Agreement to
Exhibits, Schedules, Articles, Sections, subsections, and other subdivisions
refer to the corresponding Exhibits, Schedules, Articles, Sections, subsections,
and other subdivisions of this Agreement unless expressly provided otherwise.
Titles appearing at the beginning of any Articles, Sections, subsections, or
other subdivisions of this Agreement are for convenience only, do not constitute
any part of such Articles, Sections, subsections or other subdivisions, and
shall be disregarded in construing the language contained therein. The words
"this Agreement," "herein," "hereby," "hereunder," and "hereof," and words of
similar import, refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. The words "this Section," "this
subsection," and words of similar
38
import, refer only to the Sections or subsections hereof in which such words
occur. The word "including" (in its various forms) means "including without
limitation." Pronouns in masculine, feminine, or neuter genders shall be
construed to state and include any other gender and words, terms, and titles
(including terms defined herein) in the singular form shall be construed to
include the plural and vice versa, unless the context otherwise expressly
requires. Unless the context otherwise requires, all defined terms contained
herein shall include the singular and plural and the conjunctive and disjunctive
forms of such defined terms.
10.11 SCHEDULES. Any item disclosed hereunder (including in the
Schedules hereto) shall be deemed disclosed for all purposes hereof irrespective
of the specific representation or warranty to which it is explicitly referenced.
[SIGNATURE PAGE FOLLOWS THIS PAGE]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first written above.
AMFM TEXAS BROADCASTING, LP
By: AMFM Houston, Inc.,
its General Partner
By: /s/ KATHY ARCHER
------------------------------------
Name: Kathy Archer
----------------------------------
Title: Senior Vice President
---------------------------------
AMFM TEXAS LICENSES, LP
By: AMFM Houston, Inc.,
its General Partner
By: /s/ KATHY ARCHER
------------------------------------
Name: Kathy Archer
----------------------------------
Title: Senior Vice President
---------------------------------
BISON MEDIA, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first written above.
AMFM TEXAS BROADCASTING, LP
By: AMFM Houston, Inc.,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AMFM TEXAS LICENSES, LP
By: AMFM Houston, Inc.,
its General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BISON MEDIA, INC.
By: /s/ ERIC H. HALVORSON
------------------------------------
Name: Eric H. Halvorson
----------------------------------
Title: Executive Vice President
---------------------------------
S-1