Benchmark Radio Acquisition Fund IV Limited Partnership
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(512) 404-6800
January 16, 1998
Xx. Xxxxxxx Xxxxxxx
Chairman
Cumulus Broadcasting, Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Re: Letter Agreement for the purchase of the radio stations referred to
herein
Dear Xx. Xxxxxxx:
This letter agreement (this "Agreement") contains the terms and conditions
upon which Cumulus Broadcasting, Inc., a Nevada corporation ("Broadcasting"), is
willing to acquire the assets, other than the licenses issued by the Federal
Communications Commission (the "FCC"), of radio stations WOSC-FM (Xxxxxxx Beach,
Delaware) and WWFG-FM (Ocean City, Maryland) (the "Stations") from Benchmark
Radio Acquisition Fund IV Limited Partnership, a Maryland limited partnership
("Fund IV"), and upon which Cumulus Licensing Corp., a Nevada corporation
("Licensing"), is willing to acquire the FCC licenses for the Stations from WOSC
License Limited Partnership, a Maryland limited partnership, with respect to
WOSC-FM ("Licensee 1") and WWFG License Limited Partnership, a Maryland limited
partnership, with respect to WWFG-FM ("Licensee 2") (Fund IV, Licensee 1 and
Licensee 2 being referred to herein collectively as "Seller"). (Broadcasting and
Licensing are referred to herein, collectively, as "Buyer"):
1. Assets. On the Closing Date (as hereinafter defined), Buyer shall
purchase from Seller, and Seller shall sell to Buyer, all of the assets,
properties, interests and rights of Seller, real and personal, tangible and
intangible, owned or leased by Seller which are used or held for use in the
operation of the Stations including, but not limited to, all the following: (i)
licenses, permits and authorizations of any governmental authority, including
the FCC, which FCC licenses, authorizations and permits are listed on Schedule
10(c) hereto; (ii) all real property (whether leased or owned), together with
all appurtenant easements thereto, and all equipment, office furniture and other
tangible personal property, including the real and personal property listed on
Schedules 10(f) and 10(k) hereto; (iii) all documents, files, books and records,
including the local public file; (iv) the right to use the call letters of each
Station; (v) all slogans, programs, computer programs and
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January 16, 1998
software (to the extent assignable), programming material, trade names, service
marks and copyrights; (vi) all leases, contracts and agreements listed on
Schedule 1 hereto (the "Assumed Contracts") and the rights to any security
deposits thereunder; and (vii) goodwill related to each Station; but excluding
cash or cash equivalents and accounts receivable of Seller, contracts or
agreements to which Seller is a party (other than any Assumed Contracts),
tangible and intangible personal property disposed of or consumed in the
ordinary course of business and employee benefit plans and assets relating
thereto (collectively, the "Excluded Assets"). The assets conveyed (the
"Assets") will include all replacements and additions thereto between the date
of this Agreement and the date on which the transactions contemplated hereby are
consummated (the "Closing Date"). Seller agrees that it shall convey the Assets
to Buyer free and clear of all liens, encumbrances and debts of any kind except
to the extent expressly assumed by Buyer and except for Permitted Encumbrances.
Permitted Encumbrances means (a) statutory liens for current taxes not yet due
and payable or being contested in good faith by appropriate proceedings and for
which adequate reserves have been established, (b) mechanics', carriers',
workers', repairers', and other similar liens imposed by law arising or incurred
in the ordinary course of business for obligations which are not overdue for a
period of more than 90 days or which are being contested in good faith by
appropriate proceedings, (c) in the case of leases of vehicles, rolling stock,
and other personal property, encumbrances which do not, individually or in the
aggregate, materially impair the use of such assets in the operation of the
business at the facility at which such leased equipment or other personal
property is located, (d) other liens, charges, easements, restrictions or other
encumbrances incidental to the operation of the Stations or the ownership of the
Stations' assets which were not incurred in connection with the borrowing of
money or the advance of credit and which do not materially detract from the
value of the assets of the Stations or materially interfere with the use thereof
or the operation of such assets or the Stations, taken as a whole, (e) liens on
leases of real property arising from the provisions of such leases, including,
in relation to leased real property, any agreements and/or conditions imposed on
the issuance of land use permits, zoning, business licenses, use permits, or
other entitlements of various types issued by any governmental entity, necessary
or beneficial to the continued use and occupancy of the Stations' assets or the
continuation of the operation of the operation of the Stations, (f) pledges or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation, (g)
deposits to secure the performance of bids, contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary course of
business, (h) unviolated zoning regulations and restrictive covenants and
easements of record which do not detract from the value of the Real Property
(hereinafter defined) and do not materially and adversely affect, impair or
interfere with the use of any property affected thereby, and (i) public utility
easements of record, in customary form, to serve the Real Property.
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January 16, 1998
2. Purchase Price. Subject to the adjustments set forth in paragraph 3,
the total purchase price for the Assets (the "Purchase Price") will be
$7,500,000 payable by Buyer to Seller or its assigns in cash or wire transfer
funds at the Closing (as hereinafter defined).
3. Adjustments and Prorations. (a) All revenues arising from the operation
of any Station earned or accrued up until 11:59 p.m. on the day prior to the
Closing Date, and all operating expenses arising therefrom incurred, accrued or
payable up until such time, including operating expenses arising under the
Assumed Contracts, tower rentals, business and license fees, utility charges,
real and personal property taxes levied against the Assets, property and
equipment rentals, applicable copyright or other fees, sales and service
charges, other taxes, wages, salaries, vacation, and sick and employee
compensation pay shall be prorated between Buyer and Seller in accordance with
the principle that, subject to the terms of the LMA (hereinafter defined), (i)
Seller shall receive all revenues, refunds and deposits of Seller held by third
parties, and shall be responsible for all operating expenses incurred, payable
or allocable to the conduct of the business and operations of any Station for
the period ending at 11:59 p.m. on the day prior to the Closing Date and (ii)
Buyer shall receive all revenues earned or accrued and shall be responsible for
all operating expenses incurred, payable or allocable to the conduct of the
business and operations of any Station for the period commencing on and
continuing after the Closing Date. An adjustment of the Purchase Price and
proration shall be made in favor of Buyer to the extent that Buyer assumes any
liability under any Assumed Contract to refund (or to credit against payments
otherwise due) any security deposit or similar prepayment paid to Seller by any
lessee or other third party which is not otherwise credited to Buyer. Subject to
Buyer's receipt of appropriate estoppel certificates, an adjustment of the
Purchase Price and proration shall be made in favor of Seller to the extent that
Seller has made (A) any security deposit under any Assumed Contract whether or
not there is a proration under such Assumed Contract or (B) other prepayment
under any Assumed Contract for which there is a proration, to the extent Buyer
receives the post-Closing benefits associated with such prepayment. Subject to
the terms of the LMA, Seller shall be liable for all the costs of employee
compensation relating to a Station properly attributable to or accruable on
account of service with the Seller through 11:59 p.m. on the date prior to the
Closing Date, including (1) all taxes and related contributions, vacations and
sick pay and (2) all group medical, dental or death benefits for expenses
incurred, related to or arising from events occurring on or prior to 11:59 p.m.
on the date prior to the Closing Date, or death or disability occurring on or
prior to 11:59 p.m. on the date prior to the Closing Date, whether reported by
the Closing Date or thereafter. Subject to the terms of the LMA, Buyer will be
liable for all of the costs of employee compensation (including the types of
costs referred to in clauses (1) and (2) above) relating to a Station, properly
attributable or accruable thereafter on account of service with Buyer.
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(b) Adjustments or prorations pursuant to this paragraph 3 will,
insofar as feasible, be determined and paid on the Closing Date based upon
Seller's good faith calculation delivered to Buyer five days prior to the
Closing Date and reasonably approved by Buyer, with final settlement and payment
by the appropriate party occurring no later than 90 days after the Closing Date,
unless there is a dispute with respect thereto (in which event the payment shall
be made as set forth below). Within 60 days after the Closing Date, Buyer shall
submit to Seller its good faith determination of the adjustments or prorations
required by this paragraph 3. Buyer's determination of the amount of adjustment
under this paragraph 3 shall be made in accordance with generally accepted
accounting principles, consistently applied. If Seller disagrees with the
determination made by Buyer of the adjustment, Seller shall give prompt written
notice thereof, but in no event later than 20 days after notice of Buyer's
determination, specifying in reasonable detail the nature and extent of the
disagreement, and Buyer and Seller shall have a period of 30 days in which to
resolve the disagreement. If the parties are unable to resolve the disagreement
within the 30-day period, the matter shall be submitted to Ernst & Young, an
independent certified public accounting firm, which accounting firm shall be
directed to submit a final resolution within 30 days. The accounting firm's
determination shall be binding on Buyer and Seller. Each party shall bear the
fees and expenses of its own representatives, including its independent
accountants, if any, and shall share equally the fees and expenses of Ernst &
Young, if engaged, to resolve any disagreement between the parties. Within five
business days following a final determination hereunder, the party obligated to
make payment will make the payments determined to be due and owing in accordance
with this paragraph 3.
4. Assumption of Liabilities and Obligations. (a) Subject to the
provisions of paragraph 7, as of the Closing Date, Broadcasting shall assume and
undertake to pay, discharge and perform all the obligations and liabilities of
Seller relating to a Station under the Assumed Contracts relating to the time
period beginning on or arising out of events occurring on or after the Closing
Date. Subject to the LMA, all other obligations and liabilities of Seller,
including, without limitation, (i) obligations or liabilities under any contract
not included in the Assumed Contracts, (ii) obligations or liabilities under any
Assumed Contract for which a consent to assignment, if required, has not been
obtained as of the Closing Date, (iii) any obligations and liabilities arising
under the Assumed Contracts that relate to the time period prior to the Closing
Date and (iv) any forfeiture, claim or pending litigation or proceeding relating
to the business or operations of any Station prior to the Closing Date, shall
remain and be the obligation and liability solely of Seller. Other than as
specified in the first sentence of this paragraph 4, Buyer, directly or
indirectly, shall assume no liabilities or obligations of Seller and shall not
be liable therefor. If Buyer is liable by operation of law for liabilities of
Seller not expressly assumed by Buyer, then Seller shall not be liable to Buyer
with respect to such liabilities unless and to the extent Seller is liable to
Buyer under Seller's indemnification obligations under paragraph 18.
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(b) On the Closing Date, Broadcasting shall assume Seller's
obligations under Trade Deals (hereinafter defined). The Trade Deals assumed by
Broadcasting pursuant to the terms of this paragraph 4 shall be considered
Assumed Contracts. "Trade Deals" means the exchanges prior to the commencement
of the LMA by a Station of its advertising time for goods or services, other
than in connection with the licensing of programs and programming material.
Schedule 4(b) sets forth a list of all the Trade Deals in effect as of the date
hereof and the balance, in dollar value, of either Seller's obligations to the
other party under such Trade Deals or the amount due Seller under such Trade
Deals. The goods and services to be provided to Broadcasting under the Trade
Deals after the Closing Date will be useful in connection with the operation of
the Stations. All Trade Deals have been reduced in full to writing and Seller
has made available to Buyer true and complete copies of each of such writings.
Seller will enter into no Trade Deals, nor increase the liability of Seller to
be assumed by Buyer at Closing under any Trade Deals, without the prior written
consent of Buyer.
5. Allocation. Within 30 days after the Closing Date, Seller and Buyer
shall negotiate in good faith an allocation of the Purchase Price among the
Assets (as well as liabilities assumed by Buyer) that complies with Section 1060
of the Internal Revenue Code with respect to the allocation of the Purchase
Price. If the allocation is not agreed upon within 30 days after the Closing
Date, then Buyer and Seller agree that the allocation shall be made and
consistently reported by Buyer and Seller in compliance with Section 1060 based
upon an asset valuation supplied by Broadcast Investment Analysts. The cost of
such appraisal shall be shared equally by Buyer and Seller. Buyer will order
such appraisal from Broadcast Investment Analysts promptly after such date as
Buyer and Seller fail to agree on such allocation. The appraisal, if required,
shall be provided to Seller within 45 days after the order of such appraisal.
6. Deposit Escrow Deposit. Simultaneously with the execution hereof,
Broadcasting, Fund IV and Media Venture Partners, as escrow agent, shall execute
an escrow agreement in the form of Exhibit A hereto (the "Deposit Escrow
Agreement") and, immediately after such execution, Broadcasting shall deposit
$750,000 in the form of a letter of credit reasonably acceptable to Fund IV (the
"Escrow Deposit"), in an escrow account to be governed by the terms of the
Deposit Escrow Agreement and this Agreement. At the Closing, the Escrow Deposit
and the accrued interest thereon, if any, shall be returned to Broadcasting. In
the event the parties fail to close this transaction due to Buyer's material
breach of this Agreement, and Seller terminates this Agreement pursuant to
paragraph 19 due to such breach, the Escrow Deposit and any accrued interest
thereon shall be paid to Fund IV as liquidated damages. In the event the parties
fail to close this transaction for any other reason, then the Escrow Deposit and
any accrued interest thereon shall be returned to Broadcasting.
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7. Local Marketing Agreement. Simultaneously with the execution of this
Agreement, Buyer and Seller shall enter into a local marketing agreement
substantially in the form of Exhibit B hereto pursuant to which Seller shall
make the Stations' broadcasting facilities available to Buyer prior to the
Closing (the "LMA"). Upon execution of the LMA, then, notwithstanding any other
provisions of this Agreement:
(a) Seller shall not be liable for the breach of a representation or
warranty of Seller contained in paragraph 10 (other than subparagraph (a)
or (b) thereof) if the fact, event or circumstance that gave rise to such
breach occurs after the commencement date referred to in the LMA (the
"Commencement Date") and was caused by a failure by Buyer to perform its
obligations under the LMA;
(b) Seller shall not be liable for the failure to perform or observe
any covenant contained in paragraph 12 if such failure was caused by a
failure of Buyer to perform its obligations under the LMA; and
(c) Buyer shall not be entitled to fail to consummate the
transactions contemplated by this Agreement or to terminate this Agreement
as a result of a breach of any such representation, warranty, covenant or
agreement by Seller caused by the failure of Buyer to perform its
obligations under the LMA.
8. FCC and Closing. Buyer and Seller agree that the purchase of the Assets
is subject to the prior consent and approval of the FCC without the imposition
of any conditions materially adverse to Buyer or its affiliates (other than any
Divestiture Condition, as hereinafter defined). Within ten (10) days after the
execution of this Agreement, Buyer and Seller will file an application with the
FCC seeking consent (the "FCC Consent") for the sale of the Stations
contemplated hereby. Each party will bear its own expenses in connection with
the preparation, filing and prosecution of said application. Subject to the
satisfaction or waiver of the conditions contained in this Agreement, the
Closing will take place at the offices of Xxxxxx & Xxxxxx L.L.P., in Dallas,
Texas, at 10:00 a.m., local time, on the fifteenth day after the day on which
the initial grant of the FCC Consent (the "Initial Grant") has become a Final
Order. At the election of Buyer, the receipt of a Final Order may be waived, and
in such case the Closing will occur after the Initial Grant on a date selected
by Buyer on at least five days' prior notice to Seller. "Final Order" means the
written action or order issued by the FCC setting forth the FCC Consent (without
the inclusion of any materially adverse conditions affecting Buyer's operation
or ownership of any Station, other than any Divestiture Condition) and (a) which
has not been reversed, stayed, enjoined, set aside, annulled or suspended and
(b) with respect to which (i) no requests have been filed for administrative or
judicial review, reconsideration, appeal or stay, and the time for filing any
such requests and for the FCC to set aside
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the action on its own motion has expired or (ii) in the event of review,
reconsideration or appeal, such review, reconsideration or appeal has been
denied and the time for further review, reconsideration or appeal has expired.
In addition to any other conditions specifically contained in this Agreement,
unless waived by Buyer, the obligation of Buyer to effect the transactions
contemplated hereby is subject to Seller having performed in all material
respects all obligations required to be performed by it under this Agreement on
or prior to the Closing Date, and, unless waived by Seller, the obligation of
Seller to effect the transactions contemplated hereby is subject to Buyer having
performed in all material respects all obligations required to be performed by
it under this Agreement on or prior to the Closing Date. At the Closing, Buyer
and Seller, as applicable, shall enter into the Xxxx of Sale and Assignment, the
License Assignment and the Assumption Agreement substantially in the forms of
Exhibit C-1, Exhibit C-2 and Exhibit D hereto, respectively, and such other
documents, instruments and certificates required pursuant to this Agreement or
as reasonably requested by Buyer or Seller to effect the transactions
contemplated hereby.
9. Representations and Warranties of Buyer. Except as disclosed on
Schedule 9 hereto, Buyer, jointly and severally, hereby represents and warrants
to Seller as follows, and Buyer and Seller agree that Seller's obligations
hereunder are subject to these representations and warranties being true and
correct, in all material respects, as of the Closing Date:
(a) Each of Broadcasting and Licensing is a corporation duly
organized, validly existing and in good standing in the state of its
incorporation and has all necessary corporate power and authority to
execute this Agreement and the other documents to be executed by it in
connection herewith (collectively with this Agreement, "Buyer's
Agreements") and consummate the transactions contemplated hereby and
thereby;
(b) Buyer's execution, delivery and performance of Buyer's
Agreements and the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary action on its part and,
assuming the due execution and delivery of Seller's Agreements
(hereinafter defined) by Seller, will constitute the valid and binding
obligation of Buyer, enforceable against it in accordance with their
respective terms, except as limited by laws affecting creditors' rights or
equitable principles generally;
(c) Except for the FCC Consent, the execution, delivery and
performance of Buyer's Agreements by Buyer does not require the consent of
a governmental entity or a third party not affiliated with Buyer;
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(d) There are no facts relating to Buyer or any affiliate of Buyer
that would disqualify it or any affiliate of Buyer from qualifying as an
assignee of the FCC licenses relating to the Stations, that would prevent
it from consummating the transactions contemplated by this Agreement or
delay the grant of the FCC Consent, or that would cause the FCC to impose
any Divestiture Condition on Buyer or any affiliate of Buyer (or any
person in which Buyer or any affiliate of Buyer has an attributable
interest under FCC rules). It is not necessary for Buyer or any affiliate
of Buyer (or any person in which Buyer or any affiliate of Buyer has an
attributable interest under FCC rules) to seek or obtain any waiver from
the FCC or, pursuant to the FCC requirements, dispose of any interest in
any media or communications property or interest (including, without
limitation, any Station), terminate any venture, arrangement, or
agreement, or effectuate any changes or restructuring of its ownership,
including, without limitation, the withdrawal or removal of officers or
directors or the conversion or repurchase of equity securities of Buyer or
any affiliate of Buyer owned by Buyer or any affiliate of Buyer (or any
person in which Buyer or any affiliate of Buyer has any attributable
interest under FCC rules). Buyer is able to certify on an FCC Form 314
that it is financially qualified. "Divestiture Condition" means any
condition imposed or required by the FCC as a condition for its consent to
or approval of the transfer of control of any of the FCC licenses related
to the Station or otherwise to any transaction contemplated hereby or as a
condition for its agreement not to institute litigation or any other
proceedings to prevent the transfer of control of any of the FCC licenses
related to the Stations or otherwise to prevent any of the transactions
contemplated hereby which would require Buyer or any affiliate of Buyer
(or any person in which Buyer or any affiliate of Buyer has an
attributable interest under FCC rules) to dispose of any interest in any
media or communications property or interest (including, without
limitation, any of the Stations), terminate any venture, arrangement, or
contract, or effectuate any change or restructuring of its ownership,
including, without limitation, the withdrawal or removal of officers or
directors or the conversion or repurchase of equity securities of Buyer or
any affiliate of Buyer or owned by Buyer or any affiliate of Buyer (or any
person in which Buyer or any affiliate of Buyer has an attributable
interest under FCC rules).
(e) Schedule 9 hereto sets forth, for the radio stations owned or to
be acquired by Buyer and identified in such Schedule, the revenues during
calendar year 1996 for each such station, determined in accordance with
generally accepted accounting principles, and the revenues during the ten
months ended October 31, 1997 for each such station, determined in
accordance with generally accepted accounting principles.
10. Representations and Warranties of Seller. Seller, jointly and
severally, hereby represents and warrants to Buyer as follows, and, subject to
the provisions of paragraph 7, Buyer and
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Seller agree that Buyer's obligations hereunder are subject to these
representations and warranties (without giving effect to any Material Adverse
Effect or other materiality qualifier contained therein) being true and correct
as of the Closing Date, except to the extent that any inaccuracies in such
representations and warranties that have not been waived by Buyer would not, in
the aggregate, have a Material Adverse Effect (as hereinafter defined):
(a) Seller is a limited partnership duly organized and validly
existing in the State of Maryland and has all necessary partnership power
and authority to execute this Agreement and the other documents to be
executed by it in connection herewith (collectively with this Agreement,
"Seller's Agreements") and consummate the transactions contemplated hereby
and thereby. Seller's execution, delivery and performance of Seller's
Agreements and the transactions contemplated hereby and thereby have been
duly and validly authorized by all necessary action on its part and,
assuming the due execution and delivery of Buyer's Agreements by Buyer,
will constitute the valid and binding obligations of Seller, enforceable
against it in accordance with their respective terms, except as limited by
laws affecting creditors' rights or equitable principles generally. No
person other than Seller has any interest in any of the Assets;
(b) Except for the FCC Consent and except as set forth on Schedule
10(b) hereto, the execution, delivery and performance of Seller's
Agreements by Seller does not require the consent of any governmental
entity or third party, will not conflict with or violate the provisions of
Seller's partnership agreement or any applicable law or any judgment,
order or ruling of any government authority having jurisdiction over
Seller, will not, directly or indirectly, conflict with or constitute a
breach or default under any agreement, license or permit to which Seller
is a party or is subject, and will not result in the creation of any lien
or encumbrance on the Assets, except to the extent that such conflict,
violation, breach, default, lien, or encumbrance would not have a Material
Adverse Effect. "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, or
on Seller's ability to perform its obligations under, or to consummate the
transactions contemplated by, this Agreement;
(c) Seller is the authorized legal holder of all licenses, permits
and authorizations from governmental and regulatory authorities which are
required for the lawful operation of each Station as now being conducted,
except to the extent that the failure to hold such licenses, permits, or
authorizations would not have a Material Adverse Effect. All of such
licenses, permits or authorizations, including all licenses, permits and
authorizations issued by the FCC, are in full force and effect, are not
subject to any restrictions or conditions
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materially limiting or restricting the full operation of any Station as
now being conducted and are listed on Schedule 10(c) hereto. There are no
pending or, to the knowledge of Seller, threatened proceedings which could
result in the revocation, modification or nonrenewal of such licenses,
permits and authorizations, and Seller has no reason to believe that such
licenses, permits and authorizations will not be renewed in their ordinary
course. To the knowledge of Seller, there are no facts which would
disqualify Seller as assignor of any FCC license for any Station;
(d) Seller is in compliance with all laws, regulations, rules and
governmental orders applicable to any Station and the Assets and
operations of each Station, and Seller has not violated such laws,
regulations, rules or governmental orders in the operation of any Station,
except to the extent that any such non-compliance or violation would not
have a Material Adverse Effect, and Seller has duly and timely made all
filings with governmental and regulatory authorities that are required to
have been made except to the extent any failure to file would not have a
Material Adverse Effect;
(e) Seller is not subject to any judgment, injunction, order or
arbitration decision relating to the Assets or operations of any Station
and there is no litigation or administrative proceeding pending or, to
Seller's knowledge, threatened against Seller or any Station relating to
the Assets or operations of any Station which would reasonably be expected
to have a Material Adverse Effect;
(f) Seller owns and has, and following the Closing Buyer will have,
good and marketable title to the Assets, which Assets include all real and
personal property necessary to conduct the business and operations of each
Station as now conducted. Subject to Section 12(i), all of the personal
property to be transferred to Buyer is in good and technically sound
operating condition and repair in all material respects, normal wear and
tear excepted, complies in all material respects with the rules of the FCC
and the FCC licenses for the Stations, is sufficient to operate the
Stations in material compliance with the rules of the FCC and the FCC
licenses, is suitable in all material respects for the purposes for which
it is now being used and has been maintained in all material respects in a
manner consistent with generally accepted standards of good engineering
practice. All material items of personal property to be transferred to
Buyer are listed on Schedule 10(f). Each of the Assumed Contracts is a
valid and binding obligation of Seller and is in full force and effect,
and Seller is not, and, to the knowledge of Seller, no other party is, in
default in any material respect under any Assumed Contract;
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(g) All trade names, service marks, copyrights and other
intellectual property used by Seller in the operations of any Station is
licensed to or owned by Seller and Seller's rights thereto shall be
assignable to Buyer on the Closing Date. All licenses of such intellectual
property are valid and uncontested and Seller has received no notice of
infringements or unlawful use of such property in connection with the
operations of any Station;
(h) Since the time that Capstar Broadcasting Corporation acquired
control of Seller (the "Acquisition Date"), and to Seller's knowledge
prior to such time, no condition has occurred that has resulted in any
hazardous substances in, on or under the Assets in violation of any
applicable laws or that has required or would require remediation under
applicable laws or give rise to a claim for damages or compensation by any
affected person or that would cause any material loss, cost, liability or
expense in connection with any violation of any applicable law, any order
of any governmental entity or any claim by any private or public person
arising out of any exposure of any person or property to any hazardous
substance, except for any violation, remediation, damages, compensation,
loss, cost, liability or expense that would not have a Material Adverse
Effect;
(i) Since November 30, 1997 to the date of this Agreement, there has
not occurred, and Seller has not incurred or suffered, any event,
circumstance, or fact that would result in a Material Adverse Effect.
Since the November 30, 1997, to the date of this Agreement, Seller has
conducted its business only in the ordinary course consistent with past
practice and nothing has occurred that would have been prohibited by
paragraph 12 if the terms of such paragraph had been in effect as of and
after November 30, 1997. Subject to Section 12(i), since November 30,
1997, there has not occurred, and Seller has not incurred or suffered, any
event, circumstance or fact that materially impairs the physical assets of
any of the Stations;
(j) Since the Acquisition Date, Seller has held insurance issued by
sound and reputable insurers against such risks as companies engaged in
the radio broadcast business, in accordance with good business practice,
would customarily be insured;
(k) Schedule 10(k) sets forth a true and complete list of all
parcels of real property included in the Assets, whether owned or leased
by Seller (the "Real Property"). Seller has good and marketable fee simple
title to all such parcels of owned Real Property, and a valid leasehold
interest in each parcel of leased Real Property;
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(l) Except as set forth on Schedule 10(l), the Assets are free and
clear of all mortgages, deeds of trust, liens, security interests, or
other encumbrances other than Permitted Encumbrances;
(m) Seller is not a party to any collective bargaining agreement and
has not agreed to recognize any union or other collective bargaining
representative, nor has any union or collective bargaining representative
been certified as the exclusive bargaining representative of any of its
employees. To Seller's knowledge, no union organizational campaign or
representation petition is currently pending with respect to any employees
of Seller; and
(n) Seller has delivered to Buyer Seller's unaudited balance sheet
and income statement with respect to the Stations as of November 30, 1997,
and for the eleven-month period then ended (collectively, the "Financial
Statements"). The Financial Statements present accurately the information
purported to be presented therein as of the date or for the period of the
Financial Statements.
11. Certain Buyer Covenants. Buyer hereby makes the following covenants to
Seller, the compliance with which in all material respects shall be a condition
to Seller's obligations hereunder:
(a) Buyer shall not knowingly take any action which is materially
inconsistent with its obligations under this Agreement and shall notify
Seller of any litigation or administrative proceeding pending or, to
Buyer's knowledge, threatened against Buyer that challenges the
transactions contemplated hereby;
(b) Buyer shall not knowingly take any action that would cause any
representation or warranty of Buyer contained herein to become false or
invalid, and Buyer shall notify Seller of any change in Buyer's
representations and warranties contained herein; provided, however, that
such notice shall not operate to cure any breach of such representations
or warranties; and
(c) Buyer shall not, directly or indirectly, control, supervise or
direct the operations of any Station and such control, supervision and
direction shall remain and shall be the sole responsibility of Seller.
12. Certain Seller Covenants. Subject to paragraph 7, Seller hereby makes
the following covenants to Buyer, the compliance with which covenants (without
giving effect to any Material Adverse Effect or other materiality qualifier
contained therein) shall be a condition to Buyer's
Xx. Xxxxxxx Xxxxxxx
Page 13
January 16, 1998
obligations hereunder, except to the extent that the failure of compliance with
which that has not been waived by Buyer would not, in the aggregate, have a
Material Adverse Effect:
(a) Seller shall conduct the operations of each Station in the
ordinary and prudent course of business consistent with past practices,
shall not sell, lease or dispose of any Asset to be conveyed hereunder,
and shall preserve the business of the customers, suppliers and others
having business relations with any Station;
(b) Seller shall operate each Station in all material respects in
accordance with the FCC license for such Station and all laws, regulations
and rules applicable to such Station;
(c) Seller shall not knowingly take any action that would cause any
representation or warranty of Seller contained herein to become false or
invalid, and Seller shall notify Buyer of any change in any of Seller's
representations and warranties contained herein; provided, however, that
such notice shall not operate to cure any breach of such representations
or warranties;
(d) Seller shall not knowingly take any action which is materially
inconsistent with Seller's obligations under this Agreement;
(e) Seller shall notify Buyer of any litigation or administrative
proceeding or investigation pending or, to Seller's knowledge, threatened
which challenges the transactions contemplated hereby;
(f) Seller shall promptly notify Buyer if any Station's normal
broadcast transmissions are interrupted, interfered with or in any way
impaired for more than twenty-four (24) hours with notice of the problem
and the measures being taken to correct such problem; provided, however,
that if operation of such Station is not resumed to full licensed power
and antenna height within five (5) days after such event or if more than
five (5) such events occur within any thirty (30) day period, then Buyer
shall, for a period of five (5) days after such occurrence, have the right
to terminate this Agreement;
(g) Until the Closing, Seller shall afford to Buyer and its
representatives full access, during normal business hours, upon reasonable
notice and in a manner that will not unreasonably interfere with the
conduct of the business of Seller, to all the Assets, books and records,
and the employees of the Stations, and shall deliver to Buyer copies of
such
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Page 14
January 16, 1998
financial and other information, prepared by Seller in the ordinary course
and relating to the Stations, as Buyer may reasonably request;
(h) Seller shall use commercially reasonable efforts to obtain the
consents of third parties to Assumed Contracts and the landlord estoppel
contemplated by Section 13(b) as promptly as is practicable; provided,
however, that Seller shall not be required to make any payments to any
third party in connection with such efforts; and
(i) The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Assets from any cause whatsoever shall be borne
by Seller at all times prior to the Closing, unless (x) caused by Buyer or
(y) such loss, damage, impairment, confiscation, or condemnation resulted
from Buyer's breach of the LMA, in which case under clause (x) or (y) such
risk shall be borne by Buyer (a "Buyer's Loss"). In the event of any loss,
damage, impairment, confiscation, or condemnation, whether or not covered
by insurance, to be borne by Seller (a "Seller's Loss"), Seller shall
promptly notify Buyer of such loss, damage, impairment, confiscation, or
condemnation. If Seller, at its expense, repairs, replaces, or restores
such Assets to their prior condition to the satisfaction of Buyer before
the Closing in connection with a Seller's Loss, Seller shall be entitled
to all insurance proceeds and condemnation awards, if any, by reason of
such award or loss. If Seller does not or cannot restore or replace lost,
damaged, impaired, confiscated or condemned Assets or informs Buyer that
it does not intend to restore or replace such Assets in connection with a
Seller's Loss, Buyer may at its option:
(i) terminate this Agreement by written notice forthwith
without any further obligation hereunder if the replacement cost of
such Assets exceeds $375,000 in the aggregate; or
(ii) proceed to the Closing without Seller completing the
restoration and replacement of such Assets, provided that Seller
shall assign all rights under applicable insurance policies and
condemnation awards, if any, to Buyer, and that the Purchase Price
shall be reduced by the repair or replacement cost of any Assets to
the extent not covered by such insurance proceeds or condemnation
awards, and in such event, Seller shall have no further liability
with respect to the condition of the Assets directly attributable to
the loss, damage, impairment, confiscation, or condemnation.
Buyer will notify Seller of a decision under the options described
in Section 12(i)(i) or (ii) above within ten business days after Seller's notice
to Buyer of the damage or destruction of Assets and the estimate of the costs to
repair or replace; provided, however, that if Seller states that
Xx. Xxxxxxx Xxxxxxx
Page 15
January 16, 1998
it intends to restore the damaged Assets and if Seller has not restored such
damaged Assets prior to the Closing Date, notwithstanding Buyer's prior delivery
of a notice to proceed pursuant to this Section 12(i), Buyer shall have the
right to either postpone the Closing or terminate this Agreement by notice
forthwith.
If a Buyer's Loss occurs, Buyer shall promptly notify Seller
thereof. At Buyer's request, Seller shall cooperate in Buyer's restoration or
replacement of the effected Assets at no cost to Seller. In connection with a
Buyer's Loss, Buyer shall not be permitted to terminate this Agreement;
provided, however, any insurance proceeds or condemnation awards shall be
assigned to Buyer.
13. Certain Conditions to Buyer's Obligations. Buyer and Seller agree that
Buyer's obligations hereunder are specifically conditioned upon the prior
occurrence of the following:
(a) All instruments of conveyance and transfer and other documents
delivered by Seller to effect the sale, transfer and conveyance of the
Assets to Buyer shall be reasonably satisfactory in form and substance to
Buyer and its counsel;
(b) Seller shall have delivered to Buyer the written consent of each
of the parties from whom such consent is required for the consummation by
Seller of the transactions contemplated by this Agreement, including,
without limitation, those consents set forth on Schedule 10(b), and
estoppel certificates of the landlords under the leases set forth on
Schedule 13(b) hereto;
(c) Seller shall have delivered to Buyer the opinion of Xxxxxx &
Xxxxxx L.L.P., its transactional counsel, and Wiley, Rein & Fielding, its
FCC counsel, in the forms of Exhibits E and F hereto, respectively; and
(d) Buyer shall have received at Buyer's sole cost title commitments
and surveys with respect to such parcels of Real Property (fee and
leasehold) included in the Assets as Buyer may reasonably require, and
such documents shall not reflect any conditions which would constitute the
failure of a condition to Buyer's obligation to consummate the
transactions contemplated by this Agreement.
14. Cooperation. Buyer and Seller agree to cooperate fully with one
another in taking any actions necessary or helpful to accomplish the
transactions contemplated hereby, including actions to obtain consents required
by the FCC or any third party and to obtain the estoppel certificates described
in Section 13(b) and the title reports and commitments and surveys with
Xx. Xxxxxxx Xxxxxxx
Page 16
January 16, 1998
respect to the Real Property; provided, however, that Seller shall not be
required to make any payments in connection with obtaining any third party
consents. Buyer shall use commercially reasonable efforts to satisfy any
Divestiture Condition as promptly as is practicable. The failure of Buyer to
satisfy any Divestiture Condition shall be deemed to be a material breach of
this Agreement permitting Seller to terminate this Agreement pursuant to the
provisions of Section 19(a).
15. Bulk Sales. Buyer and Seller agree to waive compliance with all "bulk
sales" or similar laws that may be applicable to the transactions contemplated
hereby, and Seller agrees to indemnify and hold Buyer harmless against any claim
made against Buyer by any creditor of Seller as a result of failure to comply
with any such laws.
16. Confidentiality. Buyer and Seller shall each keep confidential all
information obtained by it with respect to the other in connection with this
Agreement, will use such information solely in connection with the transactions
contemplated hereby, and shall return all such information to the other party if
such transactions are not consummated for any reason.
17. Costs and Expenses. Except as otherwise expressly set forth in this
Agreement, Buyer and Seller agree that each party shall be solely responsible
for all costs and expenses incurred by it in connection with the consummation of
the transactions contemplated hereby; provided, however, that all transfer,
sales or use taxes or similar charges resulting from the transfer of the Assets
contemplated hereby shall be borne by Seller, and the filing fees with respect
to the application for the FCC Consent will be shared equally by Buyer and
Seller. In the event of a dispute between the parties in connection with this
Agreement or the transactions contemplated hereby, each of the parties hereto
agrees that the prevailing party shall be entitled to reimbursement by the other
party of reasonable legal fees and expenses incurred in connection with any
action or proceeding.
18. Indemnification. (a) From and after the Closing Date, Seller agrees to
indemnify and hold Buyer and its affiliates harmless from and against all costs,
expenses, losses and damages (including reasonable attorney fees) (collectively,
"Indemnified Costs") incurred by Buyer or such affiliates as a result of or
arising out of (i) the breach by Seller of any of its representations and
warranties (without giving effect to any Material Adverse Effect or other
materiality qualifier contained therein) contained in this Agreement, (ii) the
failure by Seller to perform its covenants (without giving effect to any
Material Adverse Effect or other materiality qualifier contained therein) set
forth in this Agreement, (iii) the conduct of the operation of each Station
prior to the Closing Date, and (iv) any and all obligations or liabilities of
Seller not expressly assumed by Buyer pursuant to the terms hereof. From and
after the Closing Date, Buyer agrees to indemnify and hold Seller and its
affiliates harmless from and against all Indemnified Costs incurred by Seller or
such affiliates as
Xx. Xxxxxxx Xxxxxxx
Page 17
January 16, 1998
a result of or arising out of (w) the breach by Buyer of any of its
representations and warranties (without giving effect to any Material Adverse
Effect or other materiality qualifier contained therein) contained in this
Agreement, (x) the failure by Buyer to perform its covenants (without giving
effect to any Material Adverse Effect or other materiality qualifier contained
therein) set forth in this Agreement, (y) the conduct of the operations of each
Station after the Closing Date, including any and all liabilities arising under
any FCC license or Assumed Contract which relates to events occurring after the
Closing Date and (z) any and all obligations or liabilities expressly assumed by
Buyer pursuant to the terms hereof. The indemnified party shall make no
settlement, compromise, admission or acknowledgment that would give rise to
liability on the part of the indemnifying party without the prior written
consent of the indemnifying party.
(b) The following provisions shall govern the indemnification rights
and obligations hereunder:
(i) The indemnifying party shall not be required to indemnify
the indemnified party or its affiliates hereunder with respect to the
matters described in Section 18(a)(i) and (ii) and Section 18(a)(w) and
(x) unless and until the aggregate amount of all Indemnified Costs
incurred by the indemnified party or such affiliate and to which
indemnification hereunder applies exceeds $50,000 (the "Minimum Loss").
After the Minimum Loss is exceeded, the indemnified party or its
affiliates shall be entitled to be paid the entire amount of the
Indemnified Costs of the indemnified party or its affiliates in excess of
(but not including ) the Minimum Loss, subject to the limitations on
recourse and recovery set forth in this paragraph 18(b).
(ii) Seller shall not be liable for any Indemnified Costs of
Buyer or its affiliates, and Buyer shall not be liable for any Indemnified
Costs of Seller or its affiliates, unless a written claim for
indemnification is given by Buyer or its affiliates to Seller, or by
Seller or its affiliates to Buyer, as applicable, with respect thereto (x)
at any time after the Closing Date (but subject to applicable statutes of
limitation) with respect to a breach by Seller of the representations and
warranties set forth in paragraph 10(a) or the first sentence of paragraph
10(f), (y) on or before 5:00 p.m. Dallas, Texas time on the ninetieth day
after expiration of the applicable statute of limitations with respect to
claims asserted by third parties, and (z) on or before 5:00 p.m. Dallas,
Texas time on the eighteenth month anniversary of the Closing Date with
respect to any other claim.
(iii) The aggregate liability of Seller pursuant to this
paragraph 18 shall be limited to $750,000.
Xx. Xxxxxxx Xxxxxxx
Page 18
January 16, 1998
(iv) The parties acknowledge and agree that, after the
Closing, notwithstanding any other provision of this Agreement to the
contrary, a party's sole and exclusive remedy with respect to Indemnified
Costs and any and all other claims relating to the subject matter of this
Agreement and the transactions contemplated hereof and by any other
document or agreement executed in connection herewith shall be in
accordance with, and limited by, the provisions set forth in this
paragraph 18.
(c) All representations, warranties, agreements and covenants
contained herein shall survive the Closing in full force and effect (i) without
limitation as to duration with respect to the representations and warranties of
Seller set forth in paragraph 10(a) and the first sentence of paragraph 10(f),
(ii) until the ninetieth day after expiration of the applicable statute of
limitations with respect to those representations, warranties, agreements and
covenants that are alleged to be breached based on third party claims, and (iii)
until the eighteenth month anniversary of the Closing Date with respect to all
other claims, and following termination of a representation, warranty, agreement
or covenant, no claim can be brought with respect to a breach thereof, but such
termination shall not affect any claim for a breach thereof that was asserted
before the date of termination.
19. Termination. This Agreement may be terminated at any time prior to
Closing as follows:
(a) by written notice of Buyer to Seller or Seller to Buyer if the
other breaches any of its representations or warranties or defaults in the
performance of its covenants or agreements contained herein, in any case
which would give rise to the failure of a condition to the Closing
hereunder, and such breach or default shall not be cured within thirty
(30) days after the date notice of such breach or default is served by the
party seeking to terminate this Agreement; provided, however, that (i)
there shall be no cure period for Buyer's failure to obtain all funds on
or prior to the Closing Date necessary to pay the Purchase Price (which
failure will constitute a material breach hereunder) and (ii) in no event
may the cure period be extended beyond the termination date set forth in
paragraph 19(d) in the event the breach being cured relates to one or more
Divestiture Conditions;
(b) by written notice of Buyer to Seller or Seller to Buyer, if the
FCC denies granting the FCC Consent by a Final Order;
(c) by written notice of Buyer to Seller or Seller to Buyer, if
there shall be in effect any judgment, decree or order that would prevent
or make unlawful the Closing of the transactions contemplated by this
Agreement;
Xx. Xxxxxxx Xxxxxxx
Page 00
Xxxxxxx 00, 0000
(x) by ten days written notice of Buyer to Seller, or by Seller to
Buyer, if the Closing shall not have been consummated on or before the
first anniversary of the filing by the parties of the application for the
FCC Consent; provided, however, that the right to terminate this Agreement
under any of clauses (a) through (d) of this paragraph 19 shall not be
available to Buyer in the event that Buyer's failure to satisfy or remove
all Divestiture Conditions, if any, has been the cause of, or resulted in,
the matter giving rise to the termination rights set forth in the
applicable clause; and provided, further, that if the Closing shall not
have occurred on or before the first anniversary of the filing by parties
of the application for the FCC Consent due to Buyer's failure to satisfy
or remove a Divestiture Condition, such failure shall constitute a
material breach of this Agreement by Buyer; or
(e) By written notice under the circumstances provided for in
paragraph 12(f) or 12(i);
provided, however, that no party hereto may effect a termination hereof if such
party is then in material breach or default of this Agreement; and provided
further, that the termination of this Agreement pursuant to this paragraph shall
not relieve any party of any liability for breach of this Agreement prior to the
date of termination and shall not terminate the covenants and agreements
contained in paragraphs 6, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28.
Prior to the Closing, Seller and Buyer each acknowledge and agree that such
party's sole and exclusive remedy with respect to any and all claims for any
breach or liability under this Agreement and the transactions contemplated
hereby shall be solely in accordance with, and limited by, this paragraph 19 and
paragraph 6. In the event this Agreement is properly terminated prior to Closing
by either party pursuant to Section 19(a), the liability of the non-terminating
party shall be $750,000, which amount shall be paid to the terminating party as
liquidated damages. The parties agree that the foregoing liquidated damages are
reasonable considering all the circumstances existing as of the date hereof and
constitute the parties' good faith estimate of the actual damages reasonably
expected to result from the termination of this Agreement by a party due to the
other party's breach of this Agreement. Each party agrees that, to the fullest
extent permitted by law, such party's right to payment of such liquidated
damages shall be its sole and exclusive remedy if the Closing does not occur,
including its sole and exclusive remedy with respect to any damages whatsoever
that such party may suffer or allege to suffer as a result of any claim or cause
of action asserted by such party relating to or arising from breaches of this
Agreement by the other party.
20. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party may voluntarily or involuntarily assign its interest
under this Agreement without the prior written consent of the other parties
hereto.
Xx. Xxxxxxx Xxxxxxx
Page 20
January 16, 1998
21. Amendment. No amendment, waiver of compliance with any provision or
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any waiver, amendment or consent is sought.
22. Governing Law. This Agreement, including, without limitation, the
interpretation, construction, validity and enforceability thereof, shall be
governed by the laws (other than the conflict of laws rules) of the State of
Maryland.
23. Notice. All notices, requests, consents, waivers and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been given (a) if transmitted by facsimile, upon
acknowledgment of receipt thereof in writing by facsimile or otherwise; (b) if
personally delivered, upon delivery or refusal of delivery; (c) if mailed by
registered or certified United States mail, return receipt requested, postage
prepaid, upon delivery or refusal of delivery; or (d) if sent by a nationally
recognized overnight delivery service, upon delivery or refusal of delivery. All
notices, consents, waivers or other communications required or permitted to be
given hereunder shall be addressed to the respective party to whom such notice,
consent, waiver or other communication relates at the following addresses:
To Buyer: Cumulus Broadcasting, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
Copy to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
To Seller: Benchmark Radio Acquisition Fund IV Limited
Partnership
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Fax: (000) 000-0000
Xx. Xxxxxxx Xxxxxxx
Page 21
January 16, 1998
Copy to: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
24. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
25. Severability. Buyer and Seller agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
26. Entire Agreement. This Agreement and the exhibits hereto embody the
entire agreement and understanding of the parties hereto and supersede any and
all prior agreements, arrangements and understandings relating to the matters
provided for herein.
27. No Liability. Buyer agrees that no stockholder, director or officer of
Seller or its affiliates shall have any personal or individual liability for the
obligations of Seller under this Agreement or any other agreement entered into
in connection with this Agreement. Seller agrees that it will retain assets, or
cause any affiliate of Seller who shall assume Seller's obligations under this
Agreement to retain such assets, with a fair market value at least equal to the
amount set forth in Section 18(a)(iii) until eighteen months after the Closing
Date and, if a claim is made by Buyer for indemnification under Section 18
within such eighteen month period, Seller shall retain such assets, or cause any
affiliate of Seller who shall assume Seller's obligations under this Agreement
to retain such assets, or provide other credit assurances reasonably
satisfactory to Buyer, until such claim is finally resolved.
28. Brokers. Neither Buyer nor Seller nor any person acting on behalf of
Buyer or Seller has agreed to pay any commission or finder's fee in connection
with this Agreement, other than to Media Venture Partners, whom Buyer and Seller
acknowledge has represented Seller. Buyer and Seller agree that the payment of
the brokerage commission due to Media Venture Partners at the Closing shall be
the sole responsibility of Seller.
Xx. Xxxxxxx Xxxxxxx
Page 22
January 16, 1998
29. Further Actions. After the Closing Date, Seller shall execute and
deliver such other certificates, agreements, conveyances, and other documents,
and take such other action, as may be reasonably requested by Buyer in order to
transfer and assign to, and vest in, Buyer the Assets pursuant to the terms of
this Agreement.
30. No Reversionary Interest. The parties expressly agree, pursuant to
Section 73.1150 of the FCC rules, that Seller does not retain any right to
reassignment in the future of any of the FCC licenses transferred pursuant to
this Agreement or to operate or use the facilities of any of the Stations for
any period beyond the Closing Date.
Xx. Xxxxxxx Xxxxxxx
Page 23
January 16, 1998
Kindly sign where indicated below to indicate your acceptance of this
Agreement with the terms set forth above.
Sincerely,
BENCHMARK RADIO ACQUISITION FUND IV
LIMITED PARTNERSHIP
By: BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
HOLDINGS, INC.,
Its General Partner
By:
--------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Vice President
WOSC LICENSE LIMITED PARTNERSHIP
By: BENCHMARK RADIO ACQUISITION
FUND IV LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
RADIO LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
HOLDINGS, INC.,
Its General Partner
By:
--------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Vice President
Xx. Xxxxxxx Xxxxxxx
Page 24
January 16, 1998
WWFG LICENSE LIMITED PARTNERSHIP
By: BENCHMARK RADIO ACQUISITION
FUND IV LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
RADIO LIMITED PARTNERSHIP,
Its General Partner
By: BENCHMARK COMMUNICATIONS
HOLDINGS, INC.,
Its General Partner
By:
--------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Vice President
The foregoing reflects my understanding and agreement as outlined above this
16th day of January, 1998.
CUMULUS BROADCASTING, INC.
By:
--------------------------------
Xxxxxxx Xxxxxxx
Chairman
CUMULUS LICENSING CORP.
By:
--------------------------------
Xxxxxxx Xxxxxxx
Chairman
