Exhibit 10.08.06
ASSET EXCHANGE AGREEMENT
by and among
COX RADIO, INC.,
CXR HOLDINGS, INC.,
SALEM COMMUNICATIONS CORPORATION
and
SOUTH TEXAS BROADCASTING, INC.
Dated as of May 31, 2000
TABLE OF CONTENTS
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Page
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1. Exchange of Personal Property; Exchange of Real Property;
Exchange of Contracts and Licenses. 2
1.1 Exchange of Tangible Personal Property 2
1.2 Exchange of Real Property 3
1.3 Exchange of Licenses 3
1.4 [Intentionally Omitted] 4
1.5 Excluded Assets 4
1.6 Assumption of Liabilities 5
1.7 Section 1031 5
2. [Intentionally Omitted]. 6
3. [Intentionally Omitted] 6
4. Closing 6
4.1 Closing Deliveries 7
4.2 Prorations. 8
4.3 Further Assurances. 9
5. Representations and Warranties of Cox. 10
5.1 Organization; Good Standing. 10
5.2 Authority 10
5.3 No Breach or Violation 10
5.4 Approvals 10
5.5 No Litigation 11
5.6 Brokerage 11
5.7 Title to and Condition of Tangible Personal Property 11
5.8 Title to and Condition of Real Property. 12
5.9 Licenses. 12
5.10 FCC Compliance 12
5.11 Compliance with Laws 12
5.12 Environmental Matters 12
5.13 Accuracy of Information Furnished 13
5.14 Taxes 13
5.15 Definition of Knowledge 13
6 Representations and Warranties of Cox for the RRC Station
and Stock Purchase Agreement 13
6.1. Stock Purchase Agreement 13
6.2 Organization; Good Standing 14
6.3 Authority 14
6.4 No Breach or Violation 14
6.5 Approvals 15
6.6 No Litigation 15
6.7 Brokerage 15
6.8 Accuracy of Information Furnished 15
7. Representations and Warranties of Salem 15
7.1 Organization; Good Standing 15
7.2 Authority 15
7.3 No Breach or Violation 15
7.4 Approvals 16
7.5 No Litigation 16
7.6 Brokerage 16
7.7 Title to and Condition of Tangible Personal Property 16
7.8 Title to and Condition of Real Property 16
7.9 Licenses 17
7.10 FCC Compliance. 17
7.11 Compliance with Laws. 18
7.12 Environmental Matters 18
7.13 Accuracy of Information Furnished 18
7.14 Taxes 18
7.15 Definition of Knowledge 19
8. Covenants of the Parties 19
8.1 FCC Applications 19
8.2 Stock Purchase Agreement 19
8.3 No Solicitation Of Third Parties or Employees 20
8.4 Access. 20
8.5 Inconsistent Actions. 20
8.6 Cooperation 20
8.7 Control of the Stations 20
8.8 Risk of Loss 21
8.9 Third Party Consents 21
8.10 Title Insurance and Surveys 21
8.11 Compliance With HSR Act 22
8.12 Confidentiality 22
8.13 Financial Statements 22
9. Conditions to Salem's Obligations. 23
9.1 Representations, Warranties and Covenants. 23
9.2 Approvals of Governmental Authorities 23
9.3 No Adverse Proceedings 23
9.4 Consents 23
9.5 Closing Documents. 23
9.6 FCC Consent. 23
9.7 Resolutions 23
9.8 HSR Act 23
10. Conditions to Cox's Obligations. 23
10.1 Representations, Warranties and Covenants 24
10.2 Approvals of Governmental Authorities. 24
10.3 No Adverse Proceedings. 24
10.4 Consents 24
10.5 Closing Documents 24
10.6 FCC Consent 24
10.7 Resolutions 24
10.8 HSR Act 24
10.9 Stock Purchase Agreement 24
11. Termination 24
12. Survival of Representations and Warranties and Indemnification. 25
12.1 Survival 25
12.2 Indemnification by Cox 25
12.3 lndemnification by Salem 26
12.4 Procedure for Indemnification 26
12.5 Specific Performance 27
12.6 Opportunity to Cure 27
12.7 Rights under Stock Purchase Agreement 28
13. Taxes, Costs and Expenses 28
14. Benefit of Agreement; Assignment 28
15. Notices 28
16. Severability 29
17. Entire Agreement 29
18. Governing Law 29
19. Exhibits 29
20. Counterparts 30
21. Intentionally Omitted 30
22. Amendment; Waiver 30
23. Attorney's Fees 30
24. Defined Terms 30
SCHEDULES
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SCHEDULES TO BE DELIVERED BY COX
Schedule 1.1A - Cox Tangible Personal Property
Schedule 1.1B - RRC Tangible Personal Property
Schedule 1.2A - Cox Real Property
Schedule 1.2B - RRC Real Property
Schedule 1.3A - Cox Licenses
Schedule 1.3B - RRC Licenses
Schedule 5.3 - Consents
Schedule 5.4 - Governmental Approvals
Schedule 5.5 - Litigation
Schedule 5.7 - Title to and Condition of Cox Tangible Personal
Property
Schedule 5.8 - Title to and Condition of Cox Real Property
Schedule 5.10 - FCC Compliance
Schedule 5.12 - Environmental Matters
Schedule 5.14 - Taxes
SCHEDULES TO BE DELIVERED BY SALEM
Schedule 1.1C - Salem Tangible Personal Property
Schedule 1.2C - Salem Real Property
Schedule 1.3C - Salem Licenses
Schedule 7.3 - Consents
Schedule 7.4 - Governmental Approvals
Schedule 7.5 - Litigation
Schedule 7.7 - Title to and Condition of Salem Tangible Personal
Property
Schedule 7.8 - Title to and Condition of Salem Real Property
Schedule 7.9 - Licenses
Schedule 7.10 - FCC Compliance
Schedule 7.12 - Environmental Matters
Schedule 7.14 - Taxes
ASSET EXCHANGE AGREEMENT
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THIS ASSET EXCHANGE AGREEMENT ("Agreement") is made and entered into as of
this 31st day of May, 2000, by and among COX RADIO, INC., a Delaware corporation
("CRI"), CXR HOLDINGS, INC., a Nevada corporation ("CXR" and together with CRI,
collectively referred to herein as "Cox"), SALEM COMMUNICATIONS CORPORATION, a
Delaware corporation ("SCC"), and SOUTH TEXAS BROADCASTING, INC., a Texas
corporation ("STB" and together with SCC, collectively referred to herein as
"Salem").
WHEREAS, Cox currently owns and operates Radio Stations WSUN(AM), Plant City,
Florida, and KLUP(AM), Terrell Hills, Texas (the "Cox Stations"), pursuant to
certain licenses and authorizations issued by the Federal Communications
Commission (the "FCC"); and
WHEREAS, CRI has elected to exercise a right of first refusal granted to CRI
under an Agreement for Right of First Refusal dated as of April 3, 1995, between
WSB Radio, Inc., predecessor-in-interest to CRI, and Ring Radio Company, a
Georgia corporation ("RRC"); and
WHEREAS, in exercising its right of first refusal, CRI will execute on June 1,
2000 a Stock Purchase Agreement among CRI, Midwestern Broadcasting Company,
Inc., an Ohio corporation ("Midwestern"), and the stockholders of Midwestern
(the "Stockholders") (the "Stock Purchase Agreement"), pursuant to which CRI
will agree to acquire the issued and outstanding capital stock of Midwestern
from the Stockholders; and
WHEREAS, CRI will deliver the Stock Purchase Agreement to Midwestern and the
Stockholders on June 1, 2000; and
WHEREAS, Midwestern owns 100% of the issued and outstanding capital stock of
RRC, which owns and operates Radio Station WALR-FM, Athens, Georgia (the "RRC
Station"), pursuant to certain licenses and authorizations issued by the FCC;
and
WHEREAS, STB owns and operates Radio Station KKHT(FM), Conroe, Texas (the "Salem
Station") pursuant to certain licenses and authorizations issued by the FCC; and
WHEREAS, upon the closing of the transactions contemplated by the Stock Purchase
Agreement (the "Stock Purchase Closing"), Cox and Salem intend to
contemporaneously exchange certain property and assets used and useful in the
operations of the Cox Stations and the RRC Station on the one hand and the Salem
Station on the other hand (collectively, sometimes referred to herein as the
"Stations"); and
WHEREAS, Cox and Salem intend to transfer the Stations in a transaction that
will qualify as a "like-kind exchange" for nonrecognition of taxable income
under Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), and Cox and Salem are willing to take such steps as are necessary on
their respective parts to enable the transactions contemplated hereby to so
qualify; and
WHEREAS, the prior consent of the FCC to the transfer of the licenses and
authorizations issued by the FCC for the Stations is required, and it is
intended that if such consent is obtained, the transactions contemplated by this
Agreement will be consummated subject to all of the other terms and conditions
of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein set forth and
subject to the terms and conditions hereof, the parties agree as follows:
EXCHANGE OF PERSONAL PROPERTY; EXCHANGE OF REAL PROPERTY; EXCHANGE OF LICENSES.
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EXCHANGE OF TANGIBLE PERSONAL PROPERTY. At the Closing (as defined in
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SECTION 4),
(a) Cox shall, or cause RRC to, transfer, assign, convey and deliver to
Salem, and Salem shall accept and acquire from Cox or RRC as the case may be,
(i) all of the tangible personal property that is listed on Schedule 1.1A,
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together with any replacements thereof or additions thereto made between the
date of this Agreement and the Closing Date (the "Cox Tangible Personal
Property"), and (ii) all records relating to the Cox Assets (as defined below)
including but not limited to, the public inspection files that relate to the Cox
Stations and all proprietary information and data, maps, plans, diagrams,
blueprints, schematics and technical drawings, engineering records, and FCC
applications and filings maintained with respect to the Cox Assets (as defined
below) pursuant to the rules and regulations of the FCC (the "Cox Records");
(b) Cox shall cause RRC to transfer and assign, convey and deliver to Salem and
Salem shall accept and acquire from RRC (i) all of the tangible personal
property that is listed on Schedule 1.1B, together with any replacements thereof
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or additions thereto made between the date of this Agreement and the Closing
Date (the "RRC Tangible Personal Property"), and (ii) all records relating to
the RRC Assets (as defined below) including but not limited to, the public
inspection files that relate to the RRC Station and all proprietary information
and data, maps, plans, diagrams, blueprints, schematics and technical drawings,
engineering records and FCC Applications and filings maintained with respect to
the RRC Assets (as defined below) pursuant to the rules and regulations of the
FCC (the "RRC Records");
(c) Salem shall transfer, assign, convey and deliver to RRC, and RRC shall
accept and acquire from Salem (i) all of the tangible personal property listed
on Schedule 1.1C, together with any replacements thereof or additions thereto
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made between the date of this Agreement and the Closing Date (the "Salem
Tangible Personal Property"), and (ii) all records relating to the Salem Assets
(as defined below) including but not limited to, the public inspection files
that relate to the Salem Station and all proprietary information and data, maps,
plans, diagrams, blueprints, schematics and technical drawings, engineering
records, and FCC applications and filings maintained with respect to the Salem
Assets (as defined below) pursuant to the rules and regulations of the FCC (the
"Salem Records"); and
(d) the Cox Tangible Personal Property, the Cox Records, the RRC Tangible
Personal Property, the RRC Records, the Salem Tangible Personal Property and the
Salem Records shall be conveyed free and clear of all liens, mortgages, pledges,
covenants, security interests, charges, claims or encumbrances of any kind
whatsoever ("Liens") except for (i) Liens for current taxes not yet due and
payable or the validity of which are being contested in good faith by
appropriate proceedings and (ii) with respect to the Cox Real Property, the RRC
Real Property and the Salem Real Property, easements, covenants, conditions and
restrictions of record that do not individually or in the aggregate materially
and adversely affect said real property (collectively, "Permitted Liens").
EXCHANGE OF REAL PROPERTY. At the Closing,
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(a) Cox shall, or cause RRC to, transfer, assign, convey and deliver to
Salem, and Salem shall accept and acquire from Cox or RRC, as the case may be,
all real property and interests in real property, including fee estates,
leaseholds and subleaseholds ("Cox Real Property Leases"), purchase options,
easements, licenses, rights to access, and rights of way, and all buildings and
other improvements thereon, and other real property interests which are listed
on Schedule 1.2A, together with any replacements thereof and any additions
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thereto made between the date of this Agreement and the Closing Date (the "Cox
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Real Property");
(b) Cox shall cause RRC to transfer, assign, convey and deliver to Salem, and
Salem shall accept and acquire from RRC, all real property and interests in real
property, including fee estates, leaseholds and subleaseholds ("RRC Real
Property Leases"), purchase options, easements, licenses, rights to access, and
rights of way, and all buildings and other improvements thereon and other real
property interests which are listed on Schedule 1.2B, and any additions thereto
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made between the date of this Agreement and the Closing Date (the "RRC Real
Property");
(c) Salem shall transfer, assign, convey and deliver to RRC, and RRC shall
accept and acquire from Salem, all real property and interests in real property,
including fee estates, leaseholds and subleaseholds ("Salem Real Property
Leases"), purchase options, easements, licenses, rights to access, and rights of
way, and all buildings and other improvements thereon, and other real property
interests which are listed on Schedule 1.2C, together with any replacements
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thereof and any additions thereto made between the date of this Agreement and
the Closing Date (the "Salem Real Property"); and
(d) The Cox Real Property, the RRC Property and the Salem Real Property shall
be conveyed free and clear of all Liens (except for Permitted Liens).
EXCHANGE OF LICENSES. At the Closing,
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(a) Cox shall assign, or cause RRC to assign to Salem, and Salem shall
accept from Cox or RRC, as the case may be, all of such party's right, title and
interest in and to the licenses, permits, authorizations and call letters,
qualifications, orders, franchises, certificates, consents and approvals issued
to Cox or RRC, as the case may be, by any governmental or regulatory agency or
authority, whether Federal, state or local, and used in connection with the
operation of the Cox Stations, including the licenses and authorizations issued
by the FCC for the Cox Stations (the "Cox FCC Licenses"), and all applications
for such licenses and authorizations to the extent assignable, all of which are
set forth on Schedule 1.3A (the "Cox Licenses" and together with the Cox
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Tangible Personal Property, the Cox Records and the Cox Real Property, the "Cox
Assets");
(b) Cox shall cause RRC to assign to Salem, and Salem shall accept from RRC,
all of RRC's right, title and interest in and to the licenses, permits,
authorizations and call letters, qualifications, orders, franchises,
certificates, consents and approvals issued to RRC by any governmental or
regulatory agency or authority, whether Federal, state or local, and used in
connection with the operation of the RRC Station, including the licenses and
authorizations issued by the FCC for the RRC Station (the "RRC FCC Licenses"),
and all applications for such licenses and authorizations to the extent
assignable, all of which are set forth on Schedule 1.3B (the "RRC Licenses" and
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together with the RRC Tangible Personal Property, the RRC Records and the RRC
Real Property, the "RRC Assets");
(c) Salem shall assign to RRC and RRC shall accept from Salem, all of Salem's
right, title and interest in and to the licenses, permits, authorizations and
call letters, qualifications, orders, franchises, certificates, consents and
approvals issued to Salem by any governmental or regulatory agency or authority,
whether Federal, state or local, and used in connection with the operation of
the Salem Station as now conducted, including the licenses and authorizations
issued by the FCC for the Salem Station (the "Salem FCC Licenses"), and all
applications for such licenses and authorizations to the extent assignable, all
of which are set forth on Schedule 1.3C (the "Salem Licenses" and together with
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the Salem Tangible Personal Property, the Salem Records and the Salem Real
Property, the "Salem Assets"); and
(d) The Cox Licenses, the RRC Licenses and the Salem Licenses shall be assigned
free and clear of all Liens (except for Permitted Liens).
1.4 INTENTIONALLY OMITTED.
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1.5 APPLICABLE ASSETS1.5 EXCLUDED ASSETS.
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(a) The Cox Assets shall include only those assets set forth on Schedules
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1.1A, 1.2A and 1.3A. The RRC Assets shall include only those assets set forth
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on Schedules 1.1B, 1.2B, and 1.3B. The Salem Assets shall include only those
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assets set forth on Schedules 1.1C, 1.2C and 1.3C. The Cox Assets, together
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with the RRC Assets and the Salem Assets shall be collectively referred to
herein as the "Assets".
(b) Notwithstanding any provision of this Agreement to the contrary,
Cox and RRC shall not transfer, convey or assign to Salem and Salem shall not
transfer, convey or assign to Cox and RRC, but shall retain all of its right,
title and interest in and to, the following assets owned or held by it on the
Closing Date ("Excluded Assets"): (i) any and all cash, cash equivalents, cash
deposits to secure contract obligations (except to the extent the conveying
party receives a credit therefor under SECTION 4.2, in which event the deposit
shall be included as part of the Assets), all inter-company receivables from any
affiliate of such party and all other accounts receivable, bank deposits and
securities held by such party in respect of its Station at the Closing Date;
(ii) any and all claims of the conveying party with respect to transactions
prior to the Closing including, without limitation, claims for tax refunds and
refunds of fees paid to the FCC; (iii) all prepaid expenses (except to the
extent the conveying party receives a credit therefore under SECTION 4.2, in
which event the prepaid expense shall be included as part of the Assets); (iv)
all contracts of insurance and claims against insurers; (v) all employee benefit
plans and the assets thereof and all employment contracts; (vi) all contracts
that are terminated in accordance with the terms and provisions of this
Agreement or have expired prior to the Closing Date in the ordinary course of
business and all loans and loan agreements; (vii) all tangible personal property
disposed of or consumed between the date hereof and the Closing Date in
accordance with the terms and provisions of this Agreement; (viii) all tangible
personal property associated with the studios and business offices of the Cox
Stations, the RRC Station and the Salem Station; (ix) each party's corporate
records except to the extent such records pertain to Assets, in which case
copies thereof shall be provided; (x) all commitments, contracts and agreements
not specifically assumed by the other party pursuant to SECTION 1.6; and (xi)
the call letters of the Stations.
1.6 ASSUMPTION OF LIABILITIESASSUMPTION OF LIABILITIES. Except as
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provided in SECTION 4.1, Salem shall not assume or become obligated to perform
any debt, liability or obligation of Cox or RRC whatsoever, and Cox and RRC
shall not assume or become obligated to perform any debt, liability or
obligation of Salem whatsoever, including (i) any obligations or liabilities
under any contract, lease or agreement other than the Cox Real Property Leases,
the RRC Real Property Leases or the Salem Real Property Leases, as the case may
be; (ii) any obligations or liabilities under the Cox Real Property Leases, the
RRC Real Property Leases or the Salem Real Property Leases relating to the
period prior to the Closing; (iii) any claims or pending litigation or
proceedings relating to the operation of the Stations prior to the Closing; (iv)
any insurance policies of Salem, Cox, or RRC; (v) any obligations or liabilities
arising under capitalized leases or other financing agreements; (vi) any
obligations or liabilities of Cox, RRC, or Salem under any employee pension,
retirement, health and welfare or other benefit plans and under any employment
agreements or collective bargaining agreements; (vii) any obligation to any
employee of the Stations for severance benefits, vacation time, sick leave or
any other employment-related liability; (viii) any liability for any taxes
attributable to the Cox Assets or the RRC Assets or the operations of the Cox
Stations or the RRC Station on or prior to the Closing Date, except to the
extent the amount of such taxes is included in the Cox Proration Schedule; (ix)
any liability for taxes attributable to the Salem Assets or the operations of
the Salem Station on or prior to the Closing Date, except to the extent that the
amount of such taxes is included in the Salem Proration Schedule; or (x) any
obligations or liabilities caused by, arising out of, or resulting from any
action or omission of Cox, RRC, or Salem prior to the Closing (collectively, the
"Excluded Liabilities"). All such Excluded Liabilities shall remain and be the
obligations and liabilities solely of Cox and RRC or Salem, as the case may be.
1.7 SECTION 1031; APPRAISALS; TAX REPORTING2.5 SECTION 1031;
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APPRAISALS; TAX REPORTING
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(a) The parties agree to use commercially reasonable best efforts to
agree upon 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
Assets, determined on the basis of certain appraisals prepared by an independent
appraiser upon which the parties shall mutually agree (the "Appraiser"), and
whose fees and expenses shall be shared equally between the parties (to the
extent that the parties mutually agree upon the fair market value of any or all
of the Assets, the "Appraisals"). The parties shall direct the Appraiser to
deliver the Appraisals within sixty (60) days of the Closing Date.
(b) Each party shall use commercially reasonable best efforts to engage
in mutually agreeable sharing of financial and valuation information in order to
obtain consistent financial and tax reporting, including, but not limited to,
the preparation and filing of IRS Forms 8894 and 8824 in a manner which is
consistent with the Appraisals, to the greatest extent possible.
(c) To the extent authorized by applicable law and regulation, each
party shall report the transaction contemplated hereby as a "like-kind exchange"
under Section 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 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 party 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 each party 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 party 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.
2. [INTENTIONALLY OMITTED].
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3. [INTENTIONALLY OMITTED].3.
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4. CLOSING4. CLOSING. The closing of the transactions contemplated
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hereby (the "Closing") will take place at 10:00 a.m., local time, at the offices
of Dow, Lohnes & Albertson, PLLC, 1200 New Hampshire Avenue, N.W., Washington,
D.C. 20036, on a date designated by Cox that is not later than the tenth (10th)
day following the date upon which the FCC has granted its consent to the
assignment of the Cox FCC Licenses, the RRC FCC Licenses and the Salem FCC
Licenses, or at such other time (in any event, the "Closing Date") as shall be
agreed upon in writing by Cox and Salem.
4.1 CLOSING DELIVERIES4.1 CLOSING DELIVERIES. At the Closing:
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(a) (i) Cox shall execute and deliver, and shall cause RRC to execute
and deliver to Salem bills of sale in form and substance reasonably acceptable
to Salem, pursuant to which Cox shall convey to Salem good and marketable title
to the Cox Tangible Personal Property and the Cox Records, and RRC shall convey
to Salem good and marketable title to the RRC Tangible Personal Property and the
RRC Records; and (ii) Salem shall execute and deliver to RRC bills of sale in
form and substance reasonably acceptable to RRC, pursuant to which Salem shall
convey to RRC good and marketable title to the Salem Tangible Personal Property
and the Salem Records;
(b) (i) Cox shall execute and deliver and cause RRC to execute and
deliver to Salem a special warranty deed and such other transfer documents in
form and substance reasonably acceptable to Salem pursuant to which Cox or RRC
shall convey to Salem title to the owned Cox Real Property and any estoppel,
assignment and assumption agreements for the Cox Real Property Leases pursuant
to which Cox or RRC shall assign to Salem, and Salem shall accept assignment of,
all of Cox's or RRC's rights and privileges and assume all obligations of Cox or
RRC under the Cox Real Property Leases, insofar as they relate to the time on
and after the Closing Date and arise out of events that occur after the Closing
Date;
(ii) Cox shall cause RRC to execute and deliver to Salem a special warranty
deed and such other transfer documents in form and substance reasonably
acceptable to Salem pursuant to which RRC shall convey to Salem title to the
owned RRC Real Property and any estoppel, assignment and assumption agreements
for the RRC Real Property Leases pursuant to which RRC shall assign to Salem,
and Salem shall accept assignment of, all of RRC's rights and privileges and
assume all obligations of RRC under the RRC Real Property Leases, insofar as
they relate to the time on and after the Closing Date and arise out of events
that occur after the Closing Date; and
(iii) Salem shall execute and deliver to RRC a special warranty deed and such
other transfer documents in form and substance reasonably acceptable to RRC
pursuant to which Salem shall convey to RRC title to the Salem Real Property and
any estoppel, assignment and assumption agreements for the Salem Real Property
Leases pursuant to which Salem shall assign to RRC, and RRC shall accept
assignment of, all of Salem's rights and privileges and assume all obligations
of Salem under the Salem Real Property Leases as they relate to the time on and
after the Closing Date and arise out of events that occur after the Closing
Date;
(c) (i) Cox shall execute and deliver, and shall cause RRC to execute and
deliver to Salem such assignments of licenses and permits in form and substance
reasonably acceptable to Salem pursuant to which Cox or RRC as the case may be
shall assign to Salem, and Salem shall accept assignment of, all of such party's
right, title and interest in and to the Cox Licenses;
(ii) Cox shall cause RRC to execute and deliver to Salem such assignments of
licenses and permits in form and substance reasonably acceptable to Salem
pursuant to which RRC shall assign to Salem, and Salem shall accept assignment
of, all of RRC's right, title and interest in and to the RRC Licenses; and
(iii) Salem shall execute and deliver to RRC an Assignment of Licenses and
Permits in form and substance reasonably acceptable to the parties pursuant to
which Salem shall assign to RRC, and RRC shall accept assignment of, all of
Salem's right, title and interest in and to the Salem Licenses;
(d) (i) Cox shall deliver or cause to be delivered executed releases, in
suitable form for filing and otherwise in form and substance reasonably
satisfactory to Salem, of any security interests granted in the Cox Assets or
RRC Assets as security for payment of loans and other obligations and of any
other Liens (other than Permitted Liens); and
(ii) Salem shall deliver or cause to be delivered executed releases, in
suitable form for filing and otherwise in form and substance reasonably
satisfactory to Cox, of any security interests granted in the Salem Assets as
security for payment of loans and other obligations and of any other Liens
(other than Permitted Liens); and
(e) Cox shall deliver to Salem an assignment in form and substance
reasonably acceptable to the parties pursuant to which CRI shall assign to Salem
and Salem shall accept from CRI, the rights of CRI to indemnification by the
Stockholders (including the right to draw against the Holdback Escrow as defined
in the Stock Purchase Agreement) under the Stock Purchase Agreement as such
rights pertain to the RRC Assets and the representations, warranties and
covenants of Midwestern and the Stockholders with respect thereto.
4.2 PRORATIONS.4.2 PRORATIONS.
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(a) All income and expenses arising from the conduct of the business
and operations of the Cox Stations and the RRC Station on the one hand, and the
Salem Station, on the other hand, shall be prorated between Cox and Salem in
accordance with generally accepted accounting principles as of 12:01 a.m., on
the Closing Date. Such prorations shall include, without limitation, all ad
valorem and applicable property taxes, 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. The parties shall use commercially reasonable
efforts to provide each other a list of all known proratable items and payables
for the Stations at least five (5) days before the Closing Date;
(b) The prorations and adjustments contemplated by this Section, to the
extent practicable, shall be made on and as of the Closing Date. As to those
prorations and adjustments not ascertained on the Closing Date, adjustments and
prorations shall be made in accordance with the procedures set forth in SECTIONS
4.2(C) and 4.2(D);
(c) Within ninety (90) days of the Closing Date, Cox shall deliver to Salem
a schedule of its proposed prorations (which shall set forth in reasonable
detail the basis for those determinations) for the Salem Station (the "Cox
Proration Schedule"). The Cox Proration Schedule shall be conclusive and
binding upon Salem unless Salem provides Cox with written notice of objection
(the "Notice of Disagreement") within one hundred twenty (120) days after the
Closing Date, which notice shall state the prorations of expenses proposed by
Salem ("Salem's Proration Amount"). Cox shall have fifteen (15) days from
receipt of a Notice of Disagreement to accept or reject Salem's Proration
Amount. Payment by Salem or Cox, as the case may be, of the proration amounts
determined pursuant to this SECTION 4.2(C) shall be due fifteen (15) days after
the last to occur of (i) Salem's acceptance of the Cox Proration Schedule or
failure to give Cox a timely Notice of Disagreement and (ii) Cox's acceptance of
Salem's Proration Amount or failure to reject Salem's Proration Amount within
fifteen (15) days of receipt of a Notice of Disagreement;
(d) Within ninety (90) days of the Closing Date, Salem shall deliver to Cox
a schedule of its proposed prorations (which shall set forth in reasonable
detail the basis for those determinations) for the Cox Stations and the RRC
Station (the "Salem Proration Schedule"). The Salem Proration Schedule shall be
conclusive and binding upon Cox unless Cox provides Salem with a Notice of
Disagreement within one hundred twenty (120) days after the Closing Date, which
notice shall state the prorations of expenses proposed by Cox ("Cox's Proration
Amount"). Salem shall have fifteen (15) days from receipt of a Notice of
Disagreement to accept or reject Cox's Proration Amount. Payment by Cox or
Salem, as the case may be, of the proration amounts determined pursuant to this
SECTION 4.2(D) shall be due fifteen (15) days after the last to occur of (i)
Cox's acceptance of the Salem Proration Schedule or failure to give Salem a
timely Notice of Disagreement and (ii) Salem's acceptance of Cox's Proration
Amount or failure to reject Cox's Proration Amount within fifteen (15) days of
receipt of a Notice of Disagreement; and
(e) In the event of any disputes between the parties as to the prorations
and adjustments described in this Section, the amounts not in dispute shall
nonetheless be paid at the time provided in this Section and such disputes shall
be determined by an independent certified public accountant of national
recognition (other than a firm which then serves as the independent auditor for
Cox or Salem or any of their respective affiliates) mutually acceptable to the
parties with the fees and expenses of such accountant being paid one half by Cox
and one half by Salem. Any payment required by Cox to Salem or by Salem to Cox,
as the case may be, under this Section 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 party in the Salem
Proration Schedule or Cox Proration Schedule, as the case may be. If either Cox
or Salem fails to pay when due any amount under SECTION 4.2(C) or 4.2(D),
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 plus two
----
percent (2%), and such interest shall be payable upon demand. Notwithstanding
the provisions of SECTION 4.2(C), (D) and (E) of this Agreement, if the amount
of any taxes to be prorated pursuant to this SECTION 4.2 is not known by ninety
(90) days after the Closing Date, then the amount will be estimated as of such
date, and once the amount of such taxes is known, Salem shall pay to Cox, or Cox
shall pay to Salem, as the case may be, the net amount due as a result of the
actual apportionment of such taxes.
4.3 FURTHER ASSURANCES.4.3 FURTHER ASSURANCES. At the Closing, and
------------------- -------------------
from time to time after the Closing, Cox will execute and deliver, and cause RRC
to execute and deliver, such other instruments of conveyance, assignment,
transfer and delivery and will take, and will cause RRC to take, such other
actions as Salem reasonably may request in order to more effectively transfer,
convey, assign, and deliver to Salem, and to place Salem in possession and
control of, any of the Cox Assets and the RRC Assets, and Salem will execute and
deliver such other instruments of conveyance, assignment, transfer and delivery
and will take such other actions as Cox reasonably may request in order to more
effectively transfer, convey, assign, and deliver to Cox or RRC, and to place
Cox or RRC in possession and control of, any of the Salem Assets.
5. REPRESENTATIONS AND WARRANTIES OF COX FOR THE COX
--------------------------------------------------------
STATIONS.Representations and Warranties of Cox. Cox hereby represents and
--------------------------------------
warrants to Salem with respect to the Cox Stations only as follows:
5.1 ORGANIZATION; GOOD STANDING.5.1 ORGANIZATION; GOOD STANDING. Each
---------------------------- ---------------------------
of CRI and CXR (i) is a corporation duly incorporated, validly existing and in
good standing under the laws of the state of its incorporation and (ii) is
qualified to do business as a foreign corporation and is in good standing under
the laws of the states in which such entity conducts business.
5.2 AUTHORITY5.2 AUTHORITY. The execution, delivery and performance of this
--------- ---------
Agreement by Cox and all of the documents and instruments required to be
delivered by Cox hereby, and the consummation by Cox of the transactions
contemplated hereby and thereby are within the corporate power of Cox, and have
been duly authorized by all necessary corporate action by Cox. This Agreement
has been duly executed and delivered by Cox, and at the Closing, such other
documents and other instruments required hereby to be executed and delivered by
Cox will be duly executed and delivered by Cox. This Agreement is, and the
other documents and instruments required hereby will be, when executed and
delivered by Cox, the valid and binding obligations of Cox, enforceable against
it in accordance with their respective terms, except as the enforceability of
this Agreement or the documents or instruments contemplated hereby may be
limited by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and by judicial discretion in the enforcement of equitable remedies.
5.3 5.3 NO BREACH OR VIOLATIONNO BREACH OR VIOLATION. Except as set forth
---------------------------------------------
on Schedule 5.3, the execution and delivery by Cox of this Agreement, the
-------------
consummation by Cox of the transactions contemplated hereby, and compliance by
---
Cox with the terms hereof, do not and will not:
(i) violate or result in the breach of or contravene any of the terms,
conditions or provisions of, or constitute a default under, any organizational
documents of Cox, or any law, regulation, order, writ, injunction, decree,
determination or award of any court, governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitrator, applicable to Cox or
its assets and properties;
(ii) except for those consents listed in Schedule 5.3, 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 loan agreement,
indenture, mortgage, deed of trust or any other contract to which Cox is a party
or by which it is bound;
(iii) result in any Lien upon the Cox Assets, except for Permitted Liens; or
(iv) cause the suspension or revocation of any of the Cox Licenses.
5.4 APPROVALS5.4 APPROVALS. Except as set forth on Schedule 5.4 and
--------- --------- ------------
except for the consent of the FCC, no authorizations, approvals or consents from
any governmental or regulatory authorities or agencies are necessary to permit
Cox to execute and deliver this Agreement and to permit Cox to perform its
obligations hereunder.
5.5 NO LITIGATION5.5 NO LITIGATION. Except as set forth on Schedule 5.5,
-------------- -------------- ------------
there are no actions, suits, investigations or proceedings pending or, to the
best of Cox's knowledge, threatened against or affecting the Cox Assets, in any
court or before any arbitrator, or before or by any governmental department,
commission, bureau, board, agency or instrumentality, domestic or foreign,
which, if adversely determined, would impair the ability of Cox to perform its
obligations hereunder.
5.6 BROKERAGE5.6 BROKERAGE. Except for Media Venture Partners, Cox has not
--------- ---------
dealt with any broker or finder in connection with any of the transactions
contemplated by this Agreement, and to the best of Cox's knowledge, no other
person is entitled to any commission or finder's fee in connection with any of
these transactions.
5.7 TITLE TO AND CONDITION OF TANGIBLE PERSONAL PROPERTY5.7 TITLE TO AND
-------------------------------------------------------- ------------
CONDITION OF TANGIBLE PERSONAL PROPERTY. Except as specified on Schedule 5.7,
-------------------------------------- ------------
and except for Permitted Liens, Cox has good title to the Cox Tangible Personal
Property free and clear of all Liens. All of the Cox Tangible Personal Property
is in a good working condition and repair (ordinary wear and tear
excepted). All of the Cox Tangible Personal Property is listed in Schedule
--------
1.1A, and such schedule contains a list of all tangible personal property used
in the operation of the Cox Stations other than Excluded Assets.
5.8 TITLE TO AND CONDITION OF REAL PROPERTY.5.8 TITLE TO AND CONDITION OF
------------------------------------------ -------------------------
REAL PROPERTY. Schedule 1.2A lists all of the Cox Real Property and Cox has
------------ --------------
good title in and to the owned Cox Real Property, and such schedule contains a
-
list of all real property used in the operation of the Cox Stations other than
the Excluded Assets. All of the Cox Real Property is owned free and clear of
all Liens except for Permitted Liens. Schedule 1.2A lists all of the Cox Real
-------------
Property Leases. Except as disclosed on Schedule 5.8, with respect to each Cox
------------
Real Property Lease: (a) said lease is, and following the Closing to the best
of Cox's knowledge, will continue to be legal, valid, binding, enforceable and
in full force and effect; and (b) Cox has not assigned, transferred, conveyed,
mortgaged, deeded in trust or encumbered any interest in said lease or its
rights thereunder. To the best of Cox's knowledge, no third party is in
material default in the performance of any of its obligations under any of the
Cox Real Property Leases, 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 Cox under any Cox Real Property Lease. All improvements on
the owned Cox Real Property are in material compliance with applicable zoning
and land use laws, ordinances and regulations except for any instances of
noncompliance which do not and will not in the aggregate have a material adverse
effect on such owned Cox Real Property. All such improvements are in good
working condition and repair, and comply in all material respects with FCC rules
and regulations and all other applicable Federal, state and local statutes,
ordinances and regulations. To the best of Cox's knowledge, all of the
transmitting towers, ground radials, guy anchors, transmitter buildings and
related improvements located on the owned Cox Real Property are located entirely
on the owned Cox Real Property. Cox has no knowledge of any pending, threatened
or contemplated action to take by eminent domain or otherwise to condemn any
part of the owned Cox Real Property. Cox has full legal and practical access to
the Cox Real Property.
5.9 LICENSES5.9 LICENSES. Schedule 1.3A accurately and completely lists all
-------- -------- -------------
Cox Licenses, and such schedule contains a list of all licenses, permits
and applications used in the operation of or benefiting the Cox Stations, other
than Excluded Assets. The Cox Licenses are (a) validly issued and in full force
and effect, (b) unimpaired by any acts or omissions of Cox or Cox's employees or
agents, (c) free and clear of any restrictions that might limit the full
operation of the Cox Stations and (d) Cox has full power and authority to
operate the Cox Stations thereunder.
5.10 FCC COMPLIANCE5.10 FCC COMPLIANCE. Except as shown on Schedule 5.10,
--------------- -------------- -------------
the Cox Stations have been operated at all times by Cox at full authorized power
in material accordance with the terms of the Cox FCC Licenses, the
Communications Act of 1934, as amended (the "Act"), and all applicable rules,
regulations and policies of the FCC. Cox has timely filed or made all
applications, reports, and other disclosures required by the FCC to be filed or
made with respect to the Cox Stations. The Cox FCC Licenses are valid and in
full force and effect. Except as shown on Schedule 5.10, no application, action
-------------
or proceeding is pending for the renewal or modification of any of the Cox FCC
Licenses and, to the best of Cox's knowledge, there is not now issued or
outstanding any investigation or material complaint against Cox at the FCC as of
the date of this Agreement relating to the Cox Stations. Except as disclosed on
Schedule 5.10, 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 Cox Stations. All fees payable to governmental authorities
--
pursuant to the Cox FCC Licenses, including FCC annual regulatory fees, 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 nonrenewal in the ordinary course or revocation thereof.
5.11 COMPLIANCE WITH LAWS5.11 COMPLIANCE WITH LAWS. Cox has all licenses,
---------------------- --------------------
permits or other authorizations of governmental, regulatory or administrative
agencies required to conduct its business with respect to the Cox Stations in
all material respects as currently conducted. No judgment, decree, order or
notice of violation has been issued by any agency or authority which permits, or
would permit, revocation, modification or termination of any governmental
permit, license or authorization or which results or could result in any
material impairment of any rights thereunder. With respect to the Cox Stations,
Cox 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, regulatory or administrative
agency or authority or court or other tribunal applicable to it.
5.12 ENVIRONMENTAL MATTERS5.12 ENVIRONMENTAL MATTERS. Without limiting the
---------------------- ---------------------
generality of SECTION 5.11, except as disclosed on Schedule 5.12, all of the Cox
-------------
Real Property is free of (1) waste or debris; (2) "hazardous waste" or any
"hazardous substance" as defined in federal environmental and occupational
safety and health statutes (including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time ("CERCLA"),
and regulations promulgated thereunder; (3) any substance the presence of which
on the Cox Real Property is prohibited by any federal, state or local
environmental law; and (4) any materials which, under federal, state, or local
environmental law, require special handling in collection, storage, treatment or
disposal, each in quantities or in a manner sufficient to give rise to liability
under the federal, state or local government environmental standards or to
warrant the imposition of any penalty, civil or criminal, against Cox. Without
limiting the generality of the foregoing, except as disclosed on Schedule 5.12,
-------------
there are no installations on the Cox Real Property which contain PCBs or
asbestos in quantities sufficient to mandate the removal of such PCBs or
asbestos in accordance with federal, state or local government environmental
standards or to warrant the imposition of any penalty, civil or criminal,
against Cox. Cox has delivered to Salem all environmental assessments of the
Cox Real Property owned by Cox.
5.13 ACCURACY OF INFORMATION FURNISHED5.13 ACCURACY OF INFORMATION
------------------------------------ -------------------------
FURNISHED. No statement by Cox contained in this Agreement or in any Schedule
or Exhibit hereto contains any material untrue statement of a material fact or
omits to state any material fact which is necessary to make the Statements
contained herein not materially misleading.
5.14 TAXES5.14 TAXES. Cox has filed or caused to be filed all federal,
----- -----
state, county, local, or city tax returns which are required to be filed, and
Cox has paid or caused to be paid all taxes as shown on those returns or on any
tax assessment received by Cox to the extent that such taxes have become due, or
has set aside on its books adequate reserves (segregated to the extent
required by generally accepted accounting principles) with respect thereto.
There are no governmental investigations or other legal, administrative, or tax
proceedings pending, or to the best of Cox's knowledge, threatened, pursuant to
which Cox is or could be made liable for any taxes, penalties, interest, or
other charges, the liability for which could extend to Salem as transferee of
the Cox Assets, and no event has occurred that could impose on Salem any
liability for any taxes, penalties, or interest due or to become due from Cox.
Cox has paid in full or discharged, or caused to be paid in full or discharged,
all taxes (i) relating to the Cox Assets that are required to be paid (whether
or not such taxes are shown as due on any tax return) and (ii) the non-payment
of which could result in a Lien on the Cox Assets in the hands of Salem,
excepting in each case such taxes as will not be due until after the Closing
Date and which are to be prorated pursuant to SECTION 4.2 of this Agreement.
Any Lien for taxes on the Cox Assets the validity of which is being contested in
good faith by appropriate proceedings shall be described on Schedule 5.14 of
-------------
this Agreement.
5.15 DEFINITION OF KNOWLEDGE 5.15 DEFINITION OF KNOWLEDGE. For the purposes
----------------------- -----------------------
of this Agreement, "to the best of Cox's knowledge" or any similar
formulation thereof means to the actual knowledge of Robert F. Neil, Chief
Executive Officer; Richard A. Ferguson, Co-Chief Operating Officer; Marc W.
Morgan, Co-Chief Operating Officer; Maritza Pichon, Chief Financial Officer;
Sterling Davis, Director of Engineering; Jarrett O'Connor, Vice President and
General Manager, WSUN(AM); and Caroline Devine, Vice President and General
Manager, KLUP(AM).
6. REPRESENTATIONS AND WARRANTIES OF COX FOR THE RRC STATION AND STOCK
--------------------------------------------------------------------
PURCHASE AGREEMENT. Cox hereby represents and warrants to Salem with respect to
------------------
the RRC Station and the Stock Purchase Agreement only as follows:
6.1 STOCK PURCHASE AGREEMENT. Cox will deliver to Salem a true and
--------------------------
complete copy of the Stock Purchase Agreement (including all exhibits and
schedules thereto) as executed by CRI on June 1, 2000. The Stock Purchase
Agreement will not have been executed by Midwestern or the Stockholders at that
time. Cox will deliver copies of the signature pages of Midwestern and the
Stockholders immediately after receipt by Cox. Cox represents and warrants that
the execution, delivery and performance of the Stock Purchase Agreement by CRI
and all of the documents required to be delivered by CRI thereby and the
consummation by CRI of the Stock Purchase Agreement in accordance with the terms
thereof are within the corporate power of CRI and have been duly authorized by
all necessary corporate action by CRI. When executed by CRI, the Stock Purchase
Agreement will be a valid and binding offer of CRI subject to acceptance by
Midwestern and the Stockholders and enforceable against CRI in accordance with
its terms, except as the enforceability of the Stock Purchase Agreement or the
documents or instruments contemplated thereby may be limited by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies. Cox has no
independent knowledge of and has not made any investigation to determine the
accuracy or inaccuracy of the representations and warranties of Midwestern or
the Stockholders in the Stock Purchase Agreement.
6.2 ORGANIZATION; GOOD STANDING. At the Closing, RRC (i) will be a
-----------------------------
corporation duly incorporated, validly existing and in good standing under the
laws of the state of its incorporation and (ii) will be qualified to do business
as a foreign corporation and will be in good standing under the laws of the
states in which it conducts business.
6.3 AUTHORITY. At the Closing, the execution, delivery and performance of
---------
all of the documents and instruments required to be delivered by RRC hereby (the
"RRC Documents"), and the consummation by RRC of the transactions contemplated
hereby and thereby will be within the corporate power of RRC, and will have been
duly authorized by all necessary corporate action by RRC. At the Closing, the
RRC Documents will be duly executed and delivered by RRC and will be, when
executed and delivered by RRC, the valid and binding obligations of RRC,
enforceable against it in accordance with their respective terms, except as the
enforceability of such documents or instruments may be limited by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
6.4 NO BREACH OR VIOLATION. Except for the consent of the FCC and the HSR
------------------------
Approval, at the Closing, the execution and delivery by RRC of the RRC Documents
and the consummation by RRC of the transactions contemplated hereby, and
compliance by RRC with the terms hereof, will not:
(i) violate or result in the breach of or contravene any of the terms,
conditions or provisions of, or constitute a default under, any organizational
documents of RRC, or any law, regulation, order, writ, injunction, decree,
determination or award of any court, governmental department, board, agency or
instrumentality, domestic or foreign, or any arbitrator, applicable to RRC or
its assets and properties;
(ii) 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 loan
agreement, indenture, mortgage, deed of trust or any other contract to which RRC
is a party or by which it is bound;
(iii) result in any Lien upon the RRC Assets, excepted for Permitted Liens; or
(iv) cause the suspension or revocation of any of the RRC Licenses.
6.5 APPROVALS. Except for the consent of the FCC and the HSR Approval,
---------
at the Closing, no authorizations, approvals or consents from any governmental
or regulatory authorities or agencies will be necessary to permit RRC to execute
and deliver the RRC Documents and to consummate the transactions contemplated
hereby and thereby.
6.6 NO LITIGATION. At the Closing there will be no actions, suits,
--------------
investigations or proceedings pending or, to the best of Cox's knowledge,
threatened against or affecting the RRC Assets, in any court or before any
arbitrator, or before or by any governmental department, commission, bureau,
board, agency or instrumentality, domestic or foreign, which , if adversely
determined, would impair the ability of RRC to consummate the transactions
contemplated hereunder.
6.7 BROKERAGE. RRC will not have dealt with any broker or finder in
---------
connection with any of the transactions contemplated by this Agreement, and to
the best of Cox's knowledge, no person will be entitled to any commission or
finder's fee in connection with any of these transactions other than Media
Venture Partners whose commission is the responsibility of Cox.
6.8 ACCURACY OF INFORMATION FURNISHED. As of the Closing, no statement by
-----------------------------------
RRC contained in any of the RRC Documents shall contain any material untrue
statement of a material fact or omit to state any material fact which is
necessary to make the statements contained therein not materially misleading,
7. REPRESENTATIONS AND WARRANTIES OF SALEM.Representations and
--------------------------------------------
Warranties of Salem Salem hereby represents and warrants to Cox as follows:
7.1 ORGANIZATION; GOOD STANDING.1 ORGANIZATION; GOOD STANDING. Each of
---------------------------- ---------------------------
SCC and STB is a corporation, duly incorporated, validly existing and in good
standing under the laws of the state of its organization and is qualified to do
business as a foreign corporation and is in good standing under the laws of the
states in which it conducts business.
7.2 AUTHORITY.2 AUTHORITY. The execution, delivery and performance of this
--------- ---------
Agreement and all of the documents and instruments required to be delivered by
Salem hereby, and the consummation by Salem of the transactions contemplated
hereby and thereby are within the corporate power of Salem, and have been duly
authorized by all necessary corporate action by Salem. This Agreement has been
duly executed and delivered by Salem and at the Closing such other documents and
other instruments required hereby to be executed and delivered by Salem
will be duly executed and delivered by Salem. This Agreement is and the other
documents and instruments required hereby will be when executed and delivered by
Salem, the valid and binding obligations of Salem, enforceable against Salem in
accordance with their respective terms, except as the enforceability of this
Agreement or the documents or instruments contemplated hereby may be limited by
bankruptcy, insolvency, or similar laws affecting creditors' rights generally
and by judicial discretion in the enforcement of equitable remedies.
7.3 .3 NO BREACH OR VIOLATIONNO BREACH OR VIOLATION. Except as set forth on
--------------------------------------------
Schedule 7.3, the execution and delivery by Salem of this Agreement, the
-------------
consummation by Salem of the transactions contemplated hereby, and compliance by
Salem with the terms hereof, do not and will not:
(i) violate or result in the breach of or contravene any of the terms,
conditions or provisions of, or constitute a default under, Salem's
organizational documents, or any law, regulation, order, writ, injunction,
decree, determination or award of any court, governmental department, board,
agency or instrumentality, domestic or foreign, or any arbitrator, applicable to
Salem or its assets and properties;
(ii) except for those consents listed in Schedule 7.3, 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 loan agreement,
indenture, mortgage, deed of trust or any other contract to which Salem is a
party or by which it is bound;
(iii) result in any Lien upon the Salem Assets except for Permitted Liens; or
(iv) cause the suspension or revocation of any of the Salem Licenses.
7.4 APPROVALS7.4 APPROVALS. Except as set forth on Schedule 7.4, and
--------- --------- ------------
except for the consent of the FCC, DOJ and any approval required by the HSR Act,
no authorizations, approvals or consents from any governmental or regulatory
authorities or agencies are necessary to permit Salem to execute and deliver
this Agreement and to perform its obligations hereunder.
7.5 NO LITIGATION7.5 NO LITIGATION. Except as set forth on Schedule 7.5,
-------------- -------------- ------------
there are no actions, suits, investigations or proceedings pending or, to the
best of Salem's knowledge, threatened against or affecting the Salem Assets, in
any court or before any arbitrator, or before or by any governmental department,
commission, bureau, board, agency or instrumentality, domestic or foreign,
which, if adversely determined, would impair the ability of Salem to perform its
obligations hereunder.
7.6 BROKERAGE.6 BROKERAGE. Salem has not dealt with any broker or finder in
--------- ---------
connection with any of the transactions contemplated by this Agreement,
and, to the best of Salem's knowledge, except for Media Venture Partners, no
other person is entitled to any commission or finder's fee in connection with
any of these transactions.
7.7 TITLE TO AND CONDITION OF TANGIBLE PERSONAL PROPERTYTitle to and
-----------------------------------------------------------
Condition of Tangible Personal Property. Except as specified on Schedule 7.7,
------------
and except for Permitted Liens, Salem has good title to the Salem Tangible
Personal Property free and clear of all Liens. All of the Salem Tangible
Personal Property is in a good working condition (ordinary wear and tear
excepted). All of the Salem Tangible Personal Property is listed on Schedule
--------
1.1C and such schedule contains a list of all tangible personal property used in
--
the operation of the Salem Station other than Excluded Assets.
7.8 TITLE TO AND CONDITION OF REAL PROPERTY.8 TITLE TO AND CONDITION OF REAL
--------------------------------------- ------------------------------
PROPERTY. Schedule 1.2C lists all of the owned Salem Real Property and
-------- --------------
Salem has good title in and to the owned Salem Real Property, and such schedule
contains a list of all real property used in the operation of the Salem Station
other than Excluded Assets. All of the Salem Real Property is owned free and
clear of all Liens except for Permitted Liens. Schedule 1.2C lists all of the
-------------
Salem Real Property Leases. Except as disclosed on Schedule 7.8, with respect
------------
to each of the Salem Real Property Leases: (a) said lease is and following the
Closing, to the best of Salem's knowledge, will continue to be, legal, valid,
binding, enforceable and in full force and effect; and (b) Salem has not
assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any
interest in said lease or its rights thereunder. To the best of Salem's
knowledge, no third party is in material default in the performance of any of
its obligations under any of the Salem Real Property Leases, 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 Salem under any Salem Real
Property Lease. All improvements on the owned Salem Real Property are in
material compliance with applicable zoning and land use laws, ordinances and
regulations except for any instances of noncompliance which do not and will not
in the aggregate have a material adverse effect on such owned Salem Real
Property. All such improvements are in good working condition and repair,
comply in all material respects with FCC rules and regulations and all other
applicable Federal, state and local statutes, ordinances and regulations. To
the best of Salem's knowledge, all of the transmitting towers, ground radials,
guy anchors, transmitter buildings and related improvements located on the owned
Salem Real Property are located entirely on the owned Salem Real Property.
Salem has no knowledge of any pending, threatened or contemplated action to take
by eminent domain or otherwise to condemn any part of the Salem Real Property.
Salem has full legal and practical access to the Salem Real Property.
7.9 LICENSES.9 LICENSES. Except as set forth on Schedule 7.9, Schedule
-------- -------- ------------ --------
1.3C accurately and completely lists all of the Salem Licenses, and such
-
schedule contains a list of all licenses, permits and applications used in the
-
operation of or benefiting the Salem Station, other than Excluded Assets. All
of the Salem Licenses are (a) validly issued and in full force and effect, (b)
unimpaired by any acts or omissions of Salem or Salem's employees or agents, (c)
free and clear of any restrictions that might limit the full operation of
the Salem Station and (d) Salem has full power and authority to operate the
Salem Station thereunder.
7.10 FCC COMPLIANCE. .10 FCC COMPLIANCE. Except as shown on Schedule 7.10,
-------------- -------------- -------------
the Salem Station has been operated at all times by Salem at full
authorized power in material accordance with the terms of the Salem FCC
Licenses, the Act, and all applicable rules, regulations and policies of the
FCC. Salem has timely filed or made all applications, reports, and other
disclosures required by the FCC to be filed or made with respect to the Salem
Station. The Salem FCC Licenses are valid and in full force and effect. Except
as shown on Schedule 7.10, no application, action or proceeding is pending for
-------------
the renewal or modification of any of the Salem FCC Licenses and, to the best of
Salem's knowledge, there is not now issued or outstanding any investigation or
material complaint against Salem at the FCC as of the date of this Agreement
relating to the Salem Station. Except as disclosed in Schedule 7.10, 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 Salem
Station. All fees payable to governmental authorities, including FCC annual
regulatory fees, pursuant to the Salem 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
nonrenewal in the ordinary course or revocation thereof.
7.11 COMPLIANCE WITH LAWS7.11 COMPLIANCE WITH LAWS. Salem has all licenses,
-------------------- --------------------
permits or other authorizations of governmental, regulatory or
administrative agencies required to conduct its business with respect to the
Salem Station in all material respects as currently conducted. No judgment,
decree, order or notice of violation has been issued by any such agency or
authority which permits, or would permit, revocation, modification or
termination of any such governmental permit, license or authorization or which
results or could result in any material impairment of any rights thereunder.
With respect to the Salem Station, Salem 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, regulatory or administrative agency or authority or court or other
tribunal applicable to it.
7.12 ENVIRONMENTAL MATTERS.12 ENVIRONMENTAL MATTERS. Without limiting the
---------------------- ---------------------
generality of SECTION 7.11, except as disclosed on Schedule 7.12, all of the
-------------
Salem Real Property is free of (1) waste or debris; (2) "hazardous waste" or any
"hazardous substance" as defined in federal environmental and occupational
safety and health statutes including CERCLA, as amended from time to time, and
regulations promulgated thereunder, or as defined by CERCLA, and regulations
promulgated thereunder; (3) any substance the presence of which on the Salem
Real Property is prohibited by any federal, state or local environmental law;
and (4) any materials which, under federal, state, or local environmental law,
require special handling in collection, storage, treatment or disposal, each in
quantities or in a manner sufficient to give rise to liability under federal,
state or local government environmental standards or to warrant the imposition
of any penalty, civil or criminal, against Salem. Without limiting the
generality of the foregoing, except as disclosed on Schedule 7.12, there are no
-------------
installations on the Salem Real Property which contain PCBs or asbestos in
quantities sufficient to mandate the removal of such PCBs or asbestos in
accordance with federal, state or local government environmental standards or to
warrant the imposition of any penalty, civil or criminal, against Salem. Salem
has delivered to Cox all environmental assessments of the Salem Real Property
owned by Salem.
7.13 ACCURACY OF INFORMATION FURNISHED7.13 ACCURACY OF INFORMATION
------------------------------------ -------------------------
FURNISHED. No statement by Salem contained in this Agreement or in any Schedule
or Exhibit hereto contains any material untrue statement of a material fact
or omits to state any material fact which is necessary to make the statements
contained herein not materially misleading.
7.14 TAXES7.14 TAXES. Salem has filed or caused to be filed all federal
----- -----
income tax returns and all other federal, state, county, local, or city tax
returns which are required to be filed, and Salem has paid or caused to be paid
all taxes as shown on those returns or on any tax assessment received by Salem
to the extent that such taxes have become due, or has set aside on its books
adequate reserves (segregated to the extent required by generally accepted
accounting principles) with respect thereto. Except as disclosed on Schedule
--------
7.14, there are no governmental investigations or other legal, administrative,
--
or tax proceedings pending, or to the best of Salem's knowledge, threatened,
pursuant to which Salem is or could be made liable for any taxes, penalties,
interest, or other charges, the liability for which could extend to Cox as
transferee of the Salem Assets, and no event has occurred that could impose on
Cox any liability for any taxes, penalties, or interest due or to become due
from Salem. Salem has paid in full or discharged, or caused to be paid in full
or discharged, all taxes (i) relating to the Salem Assets that are required to
be paid (whether or not such taxes are shown as due on any tax return) and (ii)
the non-payment of which could result in a Lien on the Salem Assets in the hands
of Cox, excepting in each case such taxes as will not be due until after
the Closing Date and which are to be prorated pursuant to SECTION 4.2 of this
Agreement. Any Lien for taxes on the Salem Assets the validity of which is
being contested in good faith by appropriate proceedings shall be described on
Schedule 7.14 of this Agreement.
-------------
7.15 DEFINITION OF KNOWLEDGEDEFINITION OF KNOWLEDGE. For the purposes of
-------------------------------------------------
this Agreement, "to the best of Salem's knowledge" or any similar formulation
thereof means to the actual knowledge of Edward G. Atsinger, III, President and
Chief Executive Officer; John Ehde, Vice President of Engineering; and Gordon
Marcy, General Manager of the Salem Station.
8. COVENANTS OF THE PARTIES8. COVENANTS OF THE PARTIES. The parties
--------------------------- ------------------------
hereby covenant to each other as follows.
8.1 FCC APPLICATIONS8.1 FCC APPLICATIONS. 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 requesting consent to the assignment
of the Cox FCC Licenses to Salem (the "Cox FCC Application"), an application
with the FCC requesting consent to the assignment of the RRC FCC Licenses to
Salem (the "RRC Application") and an application with the FCC requesting consent
to the assignment of the Salem FCC Licenses to Cox (the "Salem FCC
Application"), such applications to be duly filed with the FCC by the parties
contemporaneously as contingent applications. The parties agree that the Cox
FCC Application, the RRC FCC Application and the Salem FCC Application
(together, the "FCC Applications") shall be filed not later than ten (10)
business days after the date of this Agreement, and that the FCC Applications
shall be prosecuted by each party in good faith and with due diligence. Cox and
Salem shall cooperate with each other in the preparation, filing and prosecution
of the FCC Applications. Should Cox or Salem become aware of facts which could
reasonably be expected to affect or delay in a material and adverse manner, the
FCC's grant of its consent to the FCC Applications, such party shall promptly
notify the other party in writing and in accordance with the notices provisions
set forth in SECTION 15. If the Closing shall not have occurred for any reason
within the original effective period of the consent of the FCC to the FCC
Applications, and neither party shall have terminated this Agreement under
SECTION 11, the parties shall jointly request extensions of the effective period
of the FCC consents.
8.2 STOCK PURCHASE AGREEMENT. CRI shall exercise its rights and fulfill all
------------------------
of its obligations under the Stock Purchase Agreement at all times in a timely
manner and in good faith and CRI shall take no action that is materially
inconsistent with the terms of this Agreement. CRI agrees to provide to Salem
within two (2) business days of CRI's receipt thereof, copies of all notices,
correspondence and other written communication from the Stockholders or RRC or
from any governmental authority in connection with the transactions contemplated
by the Stock Purchase Agreement. CRI shall provide Salem five (5) business
days' written notice before it exercises any right to terminate the Stock
Purchase Agreement. Prior to the end of such five (5) day notice period, Salem
may request that CRI take and CRI shall take all commercially reasonable actions
necessary to transfer to Salem any and all rights of CRI under the Stock
Purchase Agreement. Salem and Cox hereby agree that, with respect to the RRC
Assets, Salem shall have the full benefit of the representations and warranties
made by Midwestern and the Stockholders in the Stock Purchase Agreement,
including the right to draw against the Holdback Escrow as defined in the Stock
Purchase Agreement. At the Closing and to the extent CRI is permitted to do so
under the terms of the Stock Purchase Agreement, CRI shall assign to Salem, and
Salem shall accept from CRI, the rights of CRI to indemnification by the
Stockholders under the Stock Purchase Agreement insofar as such rights to
indemnification relate to the RRC Assets and the representations, warranties and
covenants of Midwestern and the Stockholders with respect thereto. To the
extent that CRI is not permitted to assign such indemnification rights to Salem,
CRI will cooperate with Salem to provide Salem with the benefit of such rights
and to assist Salem in enforcing such rights against the Stockholders. CRI
further agrees that it will not consent to or authorize any release of any funds
held by the Escrow Agent pursuant to the Holdback Escrow Agreement (as each such
term is defined in the Stock Purchase Agreement) without first consulting with
Salem.
8.3 NO SOLICITATION OF THIRD PARTIES.3 NO SOLICITATION OF THIRD
------------------------------------ ---------------------------
PARTIES. Neither party nor any of its subsidiaries, nor any of its directors,
officers, employees, representatives or agents shall, directly or indirectly,
solicit or initiate inquiries or proposals from, or enter into any 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 of the Stations owned by it (whether directly or through a
merger or sale of stock of Cox or Salem). 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.
8.4 ACCESS..4 ACCESS. 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 Assets, in
order that the parties may have full opportunity to make such investigation as
they desire of such Stations, and each party shall furnish the other party with
such information as such other party may reasonably request in connection
therewith; provided that access to the properties, books, contracts and records
of the RRC Station and RRC shall be subject to the terms of the Stock Purchase
Agreement. The rights of the parties under this Section shall not be exercised
in such a manner as to interfere unreasonably with the business of either
party's Stations.
8.5 INCONSISTENT ACTIONS..5 INCONSISTENT ACTIONS. Prior to the Closing,
--------------------- ---------------------
neither Cox nor Salem shall take any action which is materially inconsistent
with its obligations under this Agreement, or that could hinder or delay the
consummation of the transactions contemplated by this Agreement.
8.6 COOPERATION. Each party shall use commercially reasonable efforts to
-----------
cooperate fully with each other and their respective counsel and accountants in
connection with any actions required to be taken as part of their obligations
under this Agreement, and each party will use commercially reasonable efforts to
consummate the transactions contemplated hereby and to fulfill its obligations
hereunder including without limitation, each party's obligation to ensure that
the transactions contemplated hereby are accomplished in a manner enabling the
transfer of the Cox Assets, the RRC Assets and the Salem Assets to qualify as
part of a Section 1031 Exchange.
8.7 CONTROL OF THE STATIONS8.7 CONTROL OF THE STATIONS. Prior to Closing,
------------------------- -----------------------
neither party shall, directly or indirectly, control, supervise, or direct, or
attempt to control, supervise or direct the operations of the other party's
Stations; those operations, including complete control and supervision of all
Station programs, employees, and policies, shall be the sole responsibility of
the Station's licensee.
8.8 RISK OF LOSS.8 RISK OF LOSS. The risk of any loss, damage, impairment,
------------- ------------
confiscation, or condemnation of any of the Cox Assets from any cause whatsoever
shall be borne by Cox at all times prior to the Closing. The risk of any
loss, damage, impairment, confiscation, or condemnation of any of the RRC Assets
from any cause whatsoever shall be borne by RRC at all times prior to the
Closing. The risk of any loss, damage, impairment, confiscation, or
condemnation of any of the Salem Assets from any cause whatsoever shall be borne
by Salem at all times prior to the Closing.
8.9 THIRD PARTY CONSENTS.9 THIRD PARTY CONSENTS. Between the date of this
---------------------- --------------------
Agreement and the Closing, Cox and Salem shall use their respective commercially
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 a consent or waiver required with respect to the assignment of a contract
has not been obtained before the Closing, Cox or Salem (as the case may be)
shall use its commercially reasonable best 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 Cox or RRC or Salem under such
contract.
8.10 TITLE INSURANCE AND SURVEYSTITLE INSURANCE AND SURVEYS.
------------------------------
(a) With respect to each parcel of Cox Real Property and with respect to
each parcel of RRC Real Property, Salem will obtain at or prior to Closing, an
ALTA Owner's Policy of Title Insurance Form B-1992 (or equivalent policy
acceptable to Salem), issued by a title insurer satisfactory to Salem, in an
amount equal to the fair market value of the property and any improvements
thereon (as reasonably determined by Salem), insuring title to such parcel in
the name of Salem as of the Closing, subject only to liens or encumbrances
expressly permitted by this Agreement; and with respect to each parcel of Salem
Real Property that Salem owns, Cox will obtain at or prior to Closing, an ALTA
Owner's Policy of Title Insurance Form B-1992 (or equivalent policy acceptable
to Cox), issued by a title insurer satisfactory to Cox, in an amount equal to
the fair market value of the property and any improvements thereon (as
reasonably determined by Cox), insuring title to such parcel in the name of Cox
as of the Closing, subject only to liens or encumbrances expressly permitted by
this Agreement.
(b) General Requirements as to Title Insurance Policies. Each title
---------------------------------------------------------
insurance policy obtained by Cox or Salem, as the case may be, pursuant to this
Agreement shall (1) insure title to the Cox Real Property, the RRC Real Property
or the Salem Real Property described in the policy and all recorded easements
benefiting the Cox Real Property, the RRC Real Property or the Salem Real
Property, (2) contain an "extended coverage endorsement" insuring over the
general exceptions customarily contained in title policies, (3) contain an
endorsement insuring that the Cox Real Property, the RRC Real Property or the
Salem Real Property described in the policy is the same real estate shown in the
survey delivered with respect to such property, and (4) contain a "contiguity"
endorsement with respect to any of the Cox Real Property, the RRC Real Property
or the Salem Real Property consisting of more than one record parcel.
(c) Surveys. With respect to each parcel of Cox Real Property, RRC Real
-------
Property or Salem Real Property, as to which a title insurance policy is to be
-
procured pursuant to this Agreement, Salem will procure a current survey of the
parcel of Cox Real Property and RRC Real Property, and Cox will procure a
current survey of the parcel of Salem Real Property, prepared by a licensed
surveyor and conforming to current ALTA Minimum Detail Requirements for Land
Title Surveys, disclosing the location of all improvements, easements, party
walls, sidewalks, roadways, utility lines, and other matters customarily shown
on such surveys, and showing access affirmatively to public streets and roads.
8.11 COMPLIANCE WITH HSR ACT 8.11 COMPLIANCE WITH HSR ACT. If the
-------------------------- -----------------------
transactions contemplated by this Agreement are subject to the filing
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), or the approval by the U.S. Federal Trade Commission
(the "FTC") and the Antitrust Division of the U.S. Department of Justice (the
"DOJ"), Cox and Salem will (i) each make such filings as are required under
Title II of the HSR Act as soon as practicable but in any event within ten (10)
days of the date of the acceptance by Midwestern and the Stockholders of Cox's
offer set forth in the Stock Purchase Agreement, (ii) otherwise promptly comply
with the applicable requirements under the HSR Act, including furnishing all
information and filing all documents required thereunder, (iii) furnish to each
other copies of those portions of the documents filed which are not
confidential, and (iv) cooperate fully and use their respective commercially
reasonable efforts to expedite compliance with the HSR Act.
8.12 CONFIDENTIALITY. Each of the parties hereto agrees to keep the terms
---------------
and conditions of this Agreement confidential until the filing of the FCC
Applications except (a) for any disclosures to Midwestern and the Stockholders
that may be necessary under the Stock Purchase Agreement, and (b) as and to the
extent required by law, including disclosure requirements of federal and state
securities laws and rules and regulations of securities markets or as necessary
to fulfill its obligations under this Agreement.
8.13 FINANCIAL STATEMENTS. To the extent any party acquiring a Station
---------------------
hereunder is required to provide audited financial statements regarding such
Station pursuant to applicable law including, without limitation, Rule 3-05 of
Regulation S-X of the rules and regulations of the Securities and Exchange
Commission, and to the extent such financial statements exist and are available
to the conveying party, the conveying party (as soon as is reasonably
practicable following Closing, but in any event within sufficient time for the
acquiring party to comply with applicable law) shall provide to the acquiring
party a true, correct and complete copy of the audited financial statements for
such Station for the three (3) fiscal years prior to Closing, or, to the extent
the audited financial statements are not within the conveying party's custody,
possession or control, the conveying party (as soon as is reasonably practicable
following Closing, but in any event within sufficient time for the acquiring
party to comply with applicable law) shall provide to the acquiring party true,
correct and complete copies of the financial records for such Station for the
three (3) fiscal years prior to Closing and, provided management are available,
requisite access to management sufficient for the acquiring party and/or its
representatives to create audited financial statements for the Station.
9. CONDITIONS TO SALEM'S OBLIGATIONS.9. CONDITIONS TO SALEM'S
------------------------------------ -----------------------
OBLIGATIONS. Unless waived by Salem in writing, all obligations of Salem under
--
this Agreement are subject to the fulfillment, prior to or at the Closing, of
each of the following conditions.
9.1 REPRESENTATIONS, WARRANTIES AND COVENANTS. .1 REPRESENTATIONS,
-------------------------------------------- ----------------
WARRANTIES AND COVENANTS. The representations and warranties of Cox in this
-----------------------
Agreement shall be true and correct in all material respects at and as of the
Closing Date, as if made at and as of such date; Cox shall have performed all
obligations and complied with all covenants in all material respects required by
this Agreement to be performed or complied with by it at or prior to the
Closing; and Salem shall have received from Cox a certificate or certificates in
such reasonable detail as Salem may reasonably request, signed by an officer of
Cox and dated the Closing Date, to the foregoing effect.
9.2 APPROVALS OF GOVERNMENTAL AUTHORITIES9.2 APPROVALS OF GOVERNMENTAL
---------------------------------------- ---------------------------
AUTHORITIES. Any and all governmental approvals necessary to consummate the
------
transactions contemplated by this Agreement shall have been received.
9.3 NO ADVERSE PROCEEDINGS. .3 NO ADVERSE PROCEEDINGS. No order shall have
---------------------- ----------------------
been issued by, and no suit, action or other proceeding against Cox shall
be pending before, any court or governmental agency of competent jurisdiction in
which it is sought to restrain or prohibit any of the transactions contemplated
by this Agreement or to obtain damages or other relief in connection with this
Agreement or the transactions contemplated hereby; provided, however, that if
-------- -------
Cox and Salem mutually determine that any pending suit, action or proceeding
seeking to restrain or prohibit the transactions contemplated hereby is unlikely
to succeed on the merits, then the pendency of such proceeding shall not prevent
the Closing.
9.4 CONSENTS.4 CONSENTS. The consents designated as required consents on
-------- --------
Schedule 5.3 shall have been obtained.
-----------
9.5 CLOSING DOCUMENTS. .5 CLOSING DOCUMENTS. Cox and RRC shall have
------------------ ------------------
executed and delivered to Salem the documents required to be executed and
delivered by it pursuant to SECTION 4.
9.6 FCC CONSENT..6 FCC CONSENT. The FCC shall have given its consent to the
----------- -----------
FCC Applications and to the transactions contemplated hereby.
9.7 RESOLUTIONS.7 RESOLUTIONS. Cox shall have delivered to Salem
----------- -----------
resolutions adopted by the Board of Directors of Cox and RRC authorizing and
--
approving the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, certified by the Secretary of such
companies as being true and complete as of the Closing Date.
9.8 HSR ACT 9.8 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 this transaction.
10. CONDITIONS TO COX'S OBLIGATIONS.. CONDITIONS TO COX'S OBLIGATIONS.
-------------------------------- -------------------------------
Unless waived by Cox in writing in its sole discretion, all obligations of Cox
under this Agreement are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions.
10.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.1 REPRESENTATIONS,
-------------------------------------------- ----------------
WARRANTIES AND COVENANTS. The representations and warranties of Salem in this
---------------------
Agreement shall be true and correct in all material respects at and as of the
Closing Date, as if made at and as of such date; Salem shall have performed all
obligations and complied with all covenants in all material respects required by
this Agreement to be performed or complied with by it at or prior to the
Closing; and Cox shall have received from Salem a certificate or certificates in
such reasonable detail as Cox may reasonably request, signed by an officer of
Salem and dated the Closing Date, to the foregoing effect.
10.2 APPROVALS OF GOVERNMENTAL AUTHORITIES. .2 APPROVALS OF GOVERNMENTAL
---------------------------------------- -------------------------
AUTHORITIES. Any and all governmental approvals necessary to consummate the
---------
transactions contemplated by this Agreement shall have been received.
-
10.3 NO ADVERSE PROCEEDINGS. .3 NO ADVERSE PROCEEDINGS. No order shall
------------------------ -----------------------
have been issued, and no suit, action or other proceeding against Salem shall be
pending before, any court or governmental agency of competent jurisdiction
in which it is sought to restrain or prohibit any of the transactions
contemplated by this Agreement or to obtain damages or other relief in
connection with this Agreement or the transactions contemplated hereby;
provided, however, that if Salem and Cox mutually determine that any pending
-------
suit, action or proceeding seeking to restrain or prohibit the transactions
contemplated hereby is unlikely to succeed on the merits, then the pendency of
such proceeding shall not prevent the Closing.
10.4 CONSENTS.4 CONSENTS. The consents designated as required consents on
-------- --------
Schedule 7.3 shall have been obtained.
------------
10.5 CLOSING DOCUMENTS.5 CLOSING DOCUMENTS. Salem shall have executed and
------------------ -----------------
delivered to Cox the documents required to be executed and delivered by it
pursuant to SECTION 4.
10.6 FCC CONSENT.6 FCC CONSENT. The FCC shall have given its consent to the
----------- -----------
FCC Applications and the transactions contemplated hereby.
10.7 RESOLUTIONS.7 RESOLUTIONS. Salem shall have delivered to Cox
----------- -----------
resolutions adopted by the Board of Directors of Salem authorizing and approving
the execution and delivery of the transactions contemplated hereby,
certified by the Secretary of Salem as being true and complete as of the Closing
Date.
10.8 HSR ACT 10.8 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 this transaction.
10.9 STOCK PURCHASE AGREEMENT. The Stock Purchase Closing shall have
--------------------------
occurred.
11. TERMINATION11. TERMINATION. This Agreement may be terminated by
----------- -----------
either Cox or Salem, if the terminating party is not then in material default,
upon written notice to the other party, upon the occurrence of any of the
following:
(a) Conditions. If on the Closing Date any of the conditions precedent
----------
to the obligations of the terminating party set forth in this Agreement have not
been satisfied in all material respects or waived in writing by the terminating
party.
(b) Judgments. If there shall be in effect on the Closing Date any final
---------
judgment, decree, or order that would prevent or make unlawful the Closing of
this Agreement.
(c) Upset Date. If the Closing shall not have occurred on or before the
-----------
date that is twelve (12) months after the date of the Stock Purchase Agreement.
(d) Breach. If the other party is in material breach of this Agreement and
------
the breach remains uncured notwithstanding the opportunity to cure provisions of
SECTION 12.7 hereof.
(e) Stock Purchase Agreement. If the Stock Purchase Agreement has been
--------------------------
terminated other than by closing of the transactions contemplated thereby.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION.12.
---------------------------------------------------------------------
SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION.
----------------------------------------------------------------
12.1 SURVIVAL12.1 SURVIVAL. All representations and warranties
-------- --------
contained in this Agreement shall survive the Closing for a period of twelve
(12) months. Any investigations by or on behalf of any party hereto shall not
constitute waiver as to enforcement of any representation, warranty, or covenant
contained in this Agreement. No notice or information delivered by either party
shall affect the other 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 the result of a breach of any of its
representations and warranties.
12.2 INDEMNIFICATION BY COX12.2 INDEMNIFICATION BY COX. Notwithstanding the
---------------------- ----------------------
Closing, Cox hereby agrees, subject to SECTION 12.4(E), to indemnify and
hold Salem harmless against and with respect to, and shall reimburse Salem for:
(a) Breach. Any and all losses, liabilities, or damages resulting from
------
any untrue representation or breach of warranty, to the extent such
representation or warranty survives the Closing, or nonfulfillment of any
covenant by Cox contained herein or in any certificate, document, or instrument
delivered to Salem hereunder.
(b) Obligations. Any and all Excluded Liabilities relating to the Cox
-----------
Stations or the RRC Station.
(c) Ownership. Any and all losses, liabilities (other than liabilities that
---------
are prorated pursuant to SECTION 4.2) or damages resulting from (i) the
operation or ownership of the Cox Stations and the RRC Station prior to the
Closing Date, including any and all liabilities arising under the Cox Licenses,
the RRC Licenses, or the Cox Real Property Leases or the RRC Real Property
Leases which relate to events occurring prior to the Closing Date, or (ii) the
operation or ownership of the Salem Station on and after the Closing Date,
including any and all liabilities arising under the Salem Licenses or the Salem
Real Property Leases which relate to events occurring 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.
12.3 LNDEMNIFICATION BY SALEM12.3 LNDEMNIFICATION BYSalem.
-------------------------- ------------------------
Notwithstanding the Closing, subject to SECTION 12.4(E), Salem hereby agrees to
indemnify and hold Cox harmless against and with respect to, and shall reimburse
Cox for:
(a) Breach. Any and all losses, liabilities, or damages resulting from
------
any untrue representation or breach of warranty, to the extent such
representation or warranty survives the Closing, or nonfulfillment of any
covenant by Salem contained herein or in any certificate, document, or
instrument delivered to Cox hereunder.
(b) Obligations. Any and all Excluded Liabilities relating to the Salem
-----------
Station.
(c) Ownership. Any and all losses, liabilities (other than liabilities that
---------
are prorated pursuant to SECTION 4.2), or damages resulting from (i) the
operation or ownership of the Salem Station prior to the Closing Date, including
any and all liabilities arising under the Salem Licenses or the Salem Real
Property Leases which relate to events occurring prior to the Closing Date, or
(ii) the operation or ownership of the Cox Stations and the RRC Station on and
after the Closing Date, including any and all liabilities arising under the Cox
Licenses, the RRC Licenses, or the Cox Real Property Leases or the RRC Real
Property Leases which relate to events occurring 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.
12.4 PROCEDURE FOR INDEMNIFICATIONPROCEDURE FOR INDEMNIFICATION. The
------------------------------------------------------------
procedure for indemnification shall be as follows:
(a) Notice. The party seeking indemnification (the "Claimant") shall
------
promptly give notice to the indemnifying party (the "Indemnitor") of any claim,
whether solely between the parties or brought by a third party, specifying (i)
the factual basis for the claim, and (ii) the amount of the claim.
(b) Investigation. With respect to claims between the parties, following
-------------
receipt of notice from the Claimant of a claim, the Indemnitor shall have thirty
(30) business days to make any investigation of the claim that the Indemnitor
deems necessary or desirable. For the purposes of this investigation, the
Claimant agrees to make available to the Indemnitor and/or its authorized
representatives the information relied upon by the Claimant to substantiate the
claim. If the Claimant and the Indemnitor cannot agree as to the validity and
amount of the claim within said 30-day period (or any mutually agreed upon
extension thereof), the Claimant may seek appropriate legal remedy.
(c) Control. With respect to any claim by a third party as to which the
-------
Claimant is entitled to indemnification hereunder, the Indemnitor shall have the
right at its own expense to participate in or assume control of the defense of
the Claim, and the Claimant shall cooperate fully with the Indemnitor, subject
to reimbursement for actual out-of-pocket expenses incurred by the Claimant as
the result of a request by the Indemnitor. If the Indemnitor elects to assume
control of the defense of any third-party claim, the Claimant shall have the
right to participate in the defense of the claim at its own expense. If the
Indemnitor does not elect to assume control or otherwise participate in the
defense of any third party claim, it shall be bound by the results obtained by
the Claimant with respect to the claim.
(d) Immediate Action. If a claim, whether between the parties or by a third
----------------
party, requires immediate action, the parties will make every effort to reach a
decision with respect thereto as expeditiously as possible.
(e) Limitations on Indemnification.
--------------------------------
(i) Any indemnity payment hereunder shall be limited to the extent of the
actual loss or damage suffered by the Claimant and shall be reduced by the
amount of any recovery by the Claimant from any third party, including any
insurer, and by the amount of any tax benefits received.
(ii) No party shall be entitled to indemnification hereunder unless and
until the amount for which indemnification is owing exceeds Fifty Thousand
Dollars ($50,000) (the "Minimum Loss") in the aggregate for all such matters;
provided, however, that if such amount exceeds the Minimum Loss, the Indemnitor
shall be liable to the Claimant for an amount equal to fifty percent (50%) of
the Minimum Loss and one hundred percent (100%) of any excess over the Minimum
Loss, and provided further, that the aggregate amount for which a party shall be
----------------
entitled to indemnification hereunder for a breach by the other party of its
representations, warranties and covenants shall not exceed Twenty Million
Dollars ($20,000,000). No party shall be entitled to indemnification hereunder
for any claim arising from the breach by the other party of its representations
and warranties which is not asserted against the Indemnitor within twelve (12)
months after the Closing Date.
(iii) The limitations in SECTION 12.4(E)(II) shall not apply to the adjustments
and prorations to be made pursuant to SECTION 4.2.
12.5 SPECIFIC PERFORMANCE12.6 SPECIFIC PERFORMANCE. The parties
--------------------- ---------------------
recognize that if either party refuses to perform its obligations under this
Agreement, monetary damages will not be adequate to compensate the other party
for its injury. Each party shall therefore be entitled to elect, in lieu of
money damages, to obtain specific performance of the terms of this Agreement.
If any action is brought by either Salem or Cox to enforce this Agreement, Cox
or Salem, as the case may be, shall waive the defense that there is an adequate
remedy at law. Either party shall have the right to obtain specific performance
of the terms of this Agreement without being required to prove actual damages,
post bond or furnish other security.
12.6 OPPORTUNITY TO CURE12.7 OPPORTUNITY TO CURE. Neither 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) days (the "Cure Period") to cure the
default or to undertake to cure the default in a commercially reasonable manner
during the Cure Period (if it cannot be reasonably cured during the Cure Period)
and such party pursues said cure with reasonable diligence after the Cure
Period.
12.7 RIGHTS UNDER STOCK PURCHASE AGREEMENT. Nothing in this SECTION 12
-----------------------------------------
shall be deemed to limit or restrict the exercise by Salem of any rights to
indemnification it may enjoy under the terms of the Stock Purchase Agreement, as
contemplated by SECTIONS 4.1(E) and 8.2 hereof, in accordance with and subject
to the terms of the Stock Purchase Agreement.
13. TAXES, COSTS AND EXPENSES. Each party shall bear its own legal,
----------------------------
accounting and other professional expenses in connection with the negotiation,
preparation and consummation of this Agreement and the transactions contemplated
hereby. All other expenses and costs including but not limited to the HSR Act
filing fee, FCC application filing fees, title insurance and survey expenses,
transfer and use taxes, sales taxes, documentary stamps and recording fees shall
be aggregated and paid one-half by Cox and one-half by Salem as part of the
adjustments and prorations to be made pursuant to SECTION 4.2.
14. BENEFIT OF AGREEMENT; ASSIGNMENT14. BENEFIT OF AGREEMENT; ASSIGNMENT.
----------------------------------- --------------------------------
No party shall assign its interest under this Agreement, by operation of law or
otherwise, without the written consent of the other party, such consent not to
be unreasonably withheld, provided, however, that either party without obtaining
the other party's consent may assign all or a portion of its rights and/or
obligations to a corporation, partnership or other business entity that
controls, is controlled by, or is under common control with such party, and
further provided that Cox, RRC, or Salem may assign all or a portion of its
rights but not its obligations to a qualified intermediary as defined in
Treasury Regulation Section 1.1031(k) - 1(g)(4). Subject to the foregoing, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by
the parties hereto and their respective heirs, successors and assigns.
15. NOTICES15. NOTICES. All notices, requests, demands and other
------- -------
communications which are required or may be given under this Agreement, shall be
in writing and shall be deemed to have been duly given upon the hand delivery
thereof during business hours, or upon the earlier of receipt or three (3) days
after posting by registered mail or certified mail, return receipt requested, or
on the next business day following delivery to a reliable or recognized air
freight delivery service, in each case addressed as follows.
If to Cox or CBI: Robert F. Neil
President
Cox Radio, Inc.
1400 Lake Hearn Drive, N.E.
Atlanta, Georgia 30319
with a copy to: Kevin F. Reed, Esq.
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036-6802
If to Salem: Jonathan Block, Esq.
General Counsel
Salem Communications Corp.
4880 Santa Rosa Road
Suite 300
Camarillo, California 93012
with a copy to: James P. Riley, Esq.
Fletcher, Heald & Hildreth, P.L.C.
1300 North 17th Street
11th Floor
Arlington, VA 22209
Any party may, with written notice to the other, 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.
16. SEVERABILITY16. SEVERABILITY. 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.
17. ENTIRE AGREEMENT17. ENTIRE AGREEMENT. Except as herein expressly
----------------- -----------------
provided, this Agreement embodies the entire agreement and understanding among
Salem and Cox and supersedes all prior agreements and understandings, whether
oral or in writing, with respect to the purchase and sale of the Assets.
18. GOVERNING LAW18. GOVERNING LAW. This Agreement shall be construed and
-------------- -------------
enforced in accordance with the laws of the State of Georgia, without reference
to the conflict of law principles thereof.
19. EXHIBITS19. EXHIBITS. All Exhibits, Schedules, 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.
20. COUNTERPARTS. 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.
21. INTENTIONALLY OMITTED.
----------------------
22. AMENDMENT; WAIVER22. AMENDMENT; WAIVER. This Agreement (including the
------------------ -----------------
Schedules and Exhibits hereto) may not be amended, supplemented or otherwise
modified, nor may any party hereto 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 hereto of a breach of any provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach.
23. ATTORNEY'S FEES23. ATTORNEY'S FEES. 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 attorney's fees, costs and expenses from the
other party.
24. DEFINED TERMS 24. DEFINED TERMS.
--------------
"Act" 5.10
"Agreement" Preamble
"Appraisals" 1.7(a)
"Appraiser" 1.7(a)
"Assets" 1.5(a)
"CERCLA" 5.12
"Claimant" 12.4(a)
"Closing Date" 4
"Closing" 4
"Code" Recitals
"Cox" Preamble
"Cox Assets" 1.3
"Cox FCC Application" 8.1
"Cox FCC Licenses" 1.3
"Cox Licenses" 1.3
"Cox Proration Schedule" 4.2(c)
"Cox Real Property" 1.2
"Cox Real Property Leases" 1.2
"Cox Records" 1.1
"Cox Stations" Recitals
"Cox Tangible Personal Property" 1.1
"Cox's Proration Amount" 4.2(d)
"CRI" Preamble
"Cure Period" 12.6
"CXR" Preamble
"DOJ" 8.11
"Excluded Assets" 1.5(b)
"Excluded Liabilities" 1.6
"FCC" Recitals
"FCC Applications" 8.1
"FTC" 8.11
"HSR Act" 8.11
"Indemnitor" 12.4(a)
"Liens" 1.1
"Midwestern" Recitals
"Minimum Loss" 12.4(e)(ii)
"Notice of Disagreement" 4.2(c)
"Permitted Liens" 1.1
"RRC" Recitals
"RRC Assets" 1.3
"RRC Documents" 6.3
"RRC FCC Application 8.1
"RRC FCC Licenses" 1.3
"RRC Licenses" 1.3
"RRC Real Property" 1.2
"RRC Real Property Leases" 1.2
"RRC Records" 1.1
"RRC Station" Recitals
"RRC Tangible Personal Property" 1.1
"Salem" Preamble
"Salem Assets" 1.5
"Salem FCC Application" 8.1
"Salem FCC Licenses" 1.4
"Salem Licenses" 1.4
"Salem Proration Schedule" 4.2(d)
"Salem Real Property" 1.2
"Salem Real Property Leases" 1.2
"Salem Records" 1.1
"Salem Tangible Personal Property" 1.1
"Salem's Proration Amount" 4.2(c)
"SCC" Preamble
"Stations" Preamble
"STB" Recitals
"Stock Purchase Agreement" Recitals
"Stock Purchase Closing" Recitals
"Stockholders" Recitals
"To the best of Salem's knowledge" 7.15
"To the best of Cox's knowledge" 5.15
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
COX RADIO, INC.
By: ________________________________
Name:
Title:
CXR HOLDINGS, INC.
By: ________________________________
Name:
Title:
SALEM COMMUNICATIONS CORPORATION
By: ________________________________
Name:
Title:
SOUTH TEXAS BROADCASTING, INC.
By: ________________________________
Name:
Title:
SCHEDULE 1.1A
-------------
Cox Tangible Personal Property
------------------------------
WSUN(AM) (formerly WFNS), Plant City, Florida
--------------------------------------------------
See attached list.
KLUP(AM), Terrell Hills, Texas
---------------------------------
See attached list.
<PAGE>
WSUN(AM) Transmitter Site
-------------------------
Harris SX-5A 5 kW AM Transmitter
Harris SX-5A Sapre Parts Kit
Potomac AM-19D(210) Antenna Monitor
Belar AMM-3 Modulation Monitor
Gentner VRC-2000 Remote Control System
TFT 8600 STL System (Stereo/Split)
Orban 9100b Audio Processor
Old Funky Monitor Speaker
RCA/BUD 6 foot Equipment Rack
Radio Shack SA-10 Monitor Amplifier
3 tower Antenna System phasor
Delta TCA-20EX RF Ammeter
Potomac FIM-41 Field strength meter
Amana AC units (2)
Ground System Copper Strap, Wire, Etc.
Fence
Bridge
Tower Light System
STL Tower
1010 Notch Filter
Potomac Phase Monitor
Base Current Meter
Power Surge Suppressor
AM Tower #1
AM Tower #2
AM Tower #3
<PAGE>
KLUP Transmitter Site
---------------------
1) Continental 315F 5/1 KW AM transmitter s/n 28
1) Gates BC-1G 1KW AM transmitter s/n 73935
1) Two (2) Tower Phasing Cabinet
2) 7' Equipment Rack
1) Potomac 1901 Digital Two Tower Antenna Monitor
1) Belar AMM-3 AM Modulation Monitor s/n 142288
1) Burk ARC-16 remote Control Unit s/n A94902 with Two (2) Relay Panels
1) Orban 9100A AM Processor/Limiter s/n 729659
1) Moseley PCL-6030 STL Receiver s/n 56654 RX Freq: 950.000 Vertical
1) Moseley CL-100 TSL transmitter s/n 51539 Freq: 450.980 Horizontal
1) 5 KW Dummy Load with Meter and "X" tuning Circuit
1) Remote Control Interface Power Suply 48 VDC
1) 13 Watt, Mono, Audio Amplifier with Speaker
1) Delta TCA-10/20 EXR Night Common Point Meter on Phasor
1) Delta TCA-20 EXR Day Base Current Meter on Phasor
1) Scala Mini-Grid STL Antenna
1) Scal Yagi TSL System
1) 75' of 7/8" Foam Heliax with "N" connectors
1) 75' of 1/2" Foam Heliax with "N" connectors
2) Central Air Conditioners 1) 2 years old, 1) 4 years old
1) Stewart & Stevenson 25 KW Diesel Generator and Zenith Changeover
Panel-working
240) 224' Buried Cooper Radials
240) 50' Buried Intermediate Copper Radials
500' of 4" Copper Strap
550' of 3/8" Phase Stabilized Sample Lines (Buried)
550' of 7/8 Foam Heliax Transmission Line (Buried)
KLUP Towers
------------
1) 224' Guyed Triangular, Base Insulated Tower with 20" Face (day-Non-D,
Night Tower 2)
1) 224' Guyed Triangular, Base Insulated Tower with 16" Face (Night Tower 1)
KLUP Tower Tuning Houses
---------------------------
1) 5/1 KW Antenna Tuning Unit with Delta Toroid Sample Coil (Tower 2)
1) 1 KW Antenna Tuning Unit with Delta Toroid Sample Coil and TCA meter
(Tower 1)
<PAGE>
SCHEDULE 1.1B
-------------
RRC Tangible Personal Property
------------------------------
See attached list.
<PAGE>
Material Items of Personal Property
-----------------------------------
COMPUTERS BOOK VALUE
--------- -----------
8-IBM, 400 MHz. Pentium II $1,500.00
8-IBM, 450 MHz. Pentium II $1,650.00
15-IBM 15" Color Monitors Included w/ computers
1-IBM Aptiva PC, Monitor, Printer $1,300.00
1-IBM 466 DX2/D PC $ 0.00
MONITORS BOOK VALUE
-------- -----------
1-NEC MultiSync LCD Monitor $1,200.00
1-IBM 13" Color Monitor 0.00
1-Dell 13" Monochromatic Monitor 0.00
PRINTERS BOOK VALUE
-------- -----------
1-Konica 7310 Multi-Function Printer, Fax, Copier $1,800.00
2- Panasonic KXP4410 Printers $ 0.00
3-HP 4 LaserJet Printers $ 900.00
1-HP 4+ LaserJet Printer $ 600.00
2-HP 4000N LaserJet Printers $1,500.00
1-HP 4000TN LaserJet Printer $1,650.00
1 HP 4500 Color Laser Printer $3,700.00
1-HP 100 LaserJet Printer $ 0.00
<PAGE>
1-HP1600C InkJet Printer $1,200.00
2-HP 520 Printers $ 0.00
1-HP II Printer $ 155.00
1-Epson DFX 8500 Printer $2,000.00
1-Okidata Printer $ 200.00
FAX MACHINES BOOK VALUE
------------- -----------
1-Xerox 7021 Fax Machine $ 900.00
2-Brother PPF2750 Fax Machine $ 500.00
2-Panasonic UF 560 Fax Machines $ 900.00
1-Sharp FO3350 Fax Machine $ 900.00
COPIERS
-------
1-Ricoh FT7670 Copier
SHOP/RACK ROOM
---------------
8 Stanton Equipment Racks
1 Tascam 112 Cassette Machine
3 Audiocord DL Cart Players
2 Audiocord DL Cart Rec/Players
1 Audiometrics CD Player
1 ITC Delta Cart Player
3 Revox PR 99 Reel/Reel Decks
2 Valley400 Microphone Processors
1 SAS 64000 Routing Switcher w/7 control units
<PAGE>
4 PR&E Program Switchers w/control units
3 Aphex Compressor
1 BBE 862 Sonic Maximizer
2 Texar Audio Prizms
1 Orban 8100A Optimod Audio Processor
1 QEI Catlink
1 ATI LA 100 PGM Amp
1 HNAT Hindes Mic Maze
1 Orban 8200 Potimod Audio Processor
1 Hafler Power Amp
1 Crown D75 Power Amp
2 TFT 930A Recerivers
4 Audiometrics Distribution Amps
1 TFT 887 EBS Unit
1 Rolls RS 78B Tuner
2 ATI 2016 Distribution Amps
1 CDQ1000 Codec
1 SA AD 4595 Digital Receiver
VEHICLES
--------
1 Full Size Dodge Van
1 Small Size Chevy Van
1 Mercedes SL500
1 Jeep Cherokee
1 Ford Expedition
<PAGE>
EQUIPMENT LOCATED AT WALR(FM) TOWER SITE
(1) Continental 817 R 2 B Transmitter
(1) Continental 802 D Digital Exciter
(1) QEI Cat Link
(1) Mosley Remote Control
(1) Mosley S T L Receiver
(1) Belar Modulation Monitors
(1) Crown D 75 Amplifier
(2) JBL 4312 Loudspeakers
(1) Onan 125 kW Generator
(2) Best Power U P S Units
(2) Marcon Composite Clippers
<PAGE>
SCHEDULE 1.2A
-------------
Cox Real Property
-----------------
WSUN(AM( formerly WFNS), Plant City, Florida
-------------------------------------------------
WSUN(AM) Transmitter Site. (See attached Special Warranty Deed and ALTA
Commitment
Schedules A and B).
KLUP(AM), Terrell Hills, Texas
---------------------------------
Lease Agreement dated November 17, 1987, between KSDR, Inc. and Omni
Broadcasting
Corporation. Provides transmitter and tower space for KLUP. Legal description: A
13.705 acre
tract of land lying in San Antonio, Bexar County, Texas being the same property
described in
deed recorded in Volume 4051, page 419 of the Deed Records of Bexar County,
Texas, out of
the D.J. Davis Survey No. 103 and being more particularly described as follows:
Beginning at a point on the southerly boundary of Sungate Center Subdivision,
said
subdivision being recorded in Volume 7700, Pages 55 and 56 of the Deed and Plat
Records of Bexar County, Texas said point bring the most southwesterly corner of
Lot 7,
Block 4, N.C.B. 16620, Sungate Center Subdivision, said point also being the
most
northwesterly comer of the herein described tract;
Thence, N 89 degrees 42' 30" E, along and with the southerly boundary of Sungate
Center Subdivision, a distance of 612.17 feet to a point for the most
northeasterly corner
of the herein described tract;
Thence, with the center line of Beitel Creek as follows: S 35 degrees 29' 00" E,
409.66
feet; S 00 degrees 00' 00" W, 181.00 feet; S 51 degrees 50' 00" W, 238.20 feet;
S 68
degrees 26' 00" W, 394.90 feet; S 62 degrees 59' 00" W, 241.40 feet; S 73
degrees 46'
00" W, 76.15 feet;
Thence, N 00 degrees 32' 30" W, a distance of 937.03 feet to the point of
beginning of
therin described 13.705 acre tract.
<PAGE>
Return to:
Elizabeth McGeary, Esq.
Address:
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W.
Suite 800
Washington D.C. 20036
Propert Appraisal Parcel
Identification Number(s): 84328.0025
Grantee(s) Fed. I.D. #(s): 58-1620022
This special Warranty Deed Made and executed the 18th day of March, A.D.
1997, by HARMON COMMUNICATIONS, INC., a corporation existing under the laws
of the State of Florida, and having its principal place of business at 1868 Del
Robles
Drive, Clearwater, Florida, 34624 hereinafter called the grantor, to COX RADIO,
INC.,
a corporation existing under the laws of Delaware, and whose address is 1400
Lake
Hearn Drive, Atlanta, Georgia 30319 hereinafter called the grantee:
(Wherever used herein the terms "grantor" and "grantee" shall include
singular and plural, all the parties to this instrument, the heirs, legal
representatives, and assigns of individuals, and the successors and assigns
of the corporations, wherever the context so admits or requires.)
Witnesseth. That the grantor, for and in consideration of the sum of ten
dollars paid in hand
($10.00) and other good and valuable consideration, the receipt and sufficiency
whereof is hereby
acknowledged, by these presents does grant, bargain, sell, alien, remise,
release convey and confirm
unto the grantee, all that certain land situate in Hillsborough County, State of
Florida, viz:
AS SET FORTH ON EXHIBIT A ATTACHED HERETO AND MADE PART HEREOF
Together, with all the tenements, hereditaments and appurtenances thereto
belonging or in anywise appertaining.
To Have and to Hold, the same in fee simple forever.
And the grantor hereby covenants with said grantee that the grantor is lawfully
seized of said land in fee simple; that it has good, right and lawful authority
to sell and convey said land; that it hereby fully warrants the title to said
land and will defend the same against the lawful claims of all persons claiming
by, through or under the said grantor.
<PAGE>
(CORPORATE SEAL) IN WITNESS WHEREOF, this grantor has caused these presents
to be executed in its name, and its corporate seal to be hereunto affixed, by
its proper officers thereunto duly authorized, the day and the year first above
written.
ATTEST: /s/ Rebecca Sue Harmon Harmon Communications, Inc.
-------------------------
Secretary
Signed, sealed and delivered in the presence of:
/s/ Susan A. Harmon By: /s/ Elvin L. Harmon
---------------------- ----------------------
Witness Signature President (Signature)
/s/ Brent L. Harmon
----------------------
Witness Signature
<PAGE>
State of Florida
County of Pinallas
I hereby certify that on this day, before me, as officer duly authorized to
administer oaths and take acknowledgements, personally appeared Elvin L. Harmon
and Rebecca Sue Harmon known to me to be the President and Secretary
respectively of Harmon Communications, Inc., the corporation on whose name the
foregoing instrument was executed and that they severally acknowledged executing
the same for such corporation, freely and voluntarily, under authority duly
vested in them by said corporation, and that they seal affixed thereto is the
true corporate seal of such corporation, and that an oath was not taken. Said
persons produced the following type of identification: Florida Driver's
License.
Witness my hand and official seal in the County ans State last aforesaid this
18th day of March, A.D. 1997.
/s/ Lee W. Schafer
---------------------
Notary Signature
<PAGE>
EXHIBIT A
The East 1/2 of the Southwest 1/4 of the Northeast 1/4 of Section 4, Township 29
South, Range 21
East, LESS AND EXCEPT the following: the South 15O feet and LESS commence at
the
railroad spike marking the Northeast corner of the Southwest 1/4 of the
Northeast 1/4 of said Section
4; run thence South (assumed bearing) along the East boundary of said Southwest
1/4 of the
Northeast 1/4, a distance of 43.04 feet to a point; thence North 88 degrees
57'40" West, a distance 30.00
feet to an iron rod on the existing Westerly right-of-way line of Sydney Dover
Road, said point
being the point of beginning; thence South along said Westerly right-of-way line
(which line is
parallel with and 30.00 feet West of said East boundary of the Southwest 1/4 of
the Northeast 1/4)
a distance of 192.74 feet to an iron rod; thence North 88 degrees 57'40" West a
distance of 113.00 feet
to an iron rod; thence North 192.74 feet to an iron rod on the existing
Southerly right-of-way line
of Downing Street; thence South 88 degrees 57'40" East, along said Southerly
right-of-way line, a
distance of 113.00 feet to an iron rod and the point of beginning.
Being more particularly described as follows:
Commence at the railroad spike marking the Northeast comer of the Southwest 1/4
of the
Northeast 1/4 of Section 4, Township 29 South, Range 21 East, Hillsborough
County, Florida, run
thence South (assumed bearing) along the East line of said Southwest 1/4 of the
Northeast 1/4,
a distance of 43.04 feet, thence North 88 degrees 57'40" West a distance of
30.00 feet to a paint on the
Westerly right-of-way line of Sydney Dover Road; thence South along said
Westerly right-of-way
line a distance of 192.74 feet to the: point of Beginning, thence continuing
along said Westerly
right-of-way (which line is 30.00 feet West of and parallel to the East line of
said Southwest 1/4
of the Northeast 1/4) South, a distance of 937.45 feet; thence departing said
Westerly right-of-way
line North 89 degrees 22'15" West slang a line 150.00 feet North of and parallel
to the South line of said
Southwest 1/4 of the Northeast 1/4 a distance of 635,40 feet to a point on the
West line at the
East 1/2, of said Southwest 1/4 of the Northeast 1/4; thence North 00 degrees
15'34" East along said West
line: a distance of 1134.66 feet to a-point on the Southerly right-of-way line
of Downing Street;
thence South 88 degree 57'40" East along said Southerly right-of-way line a
distance of 517.33 feet;
thence departing said Southerly right-of-way line South, a distance of 192.74
feet; thence South
88 degrees 57'40" East a distance of 113.00 feet to the Point of Beginning.
Said parcel contains 15.9511 acres (694.831 square feet) more or less.
<PAGE>
A.L.T.A COMMITMENT
CHICOAGO TITLE INSURANCE COMPANY
SCHEDULE A
Office File Number Effective Date Commitment Number
209601893 March 4, 1997 509600794AL
Revised 1/07/97 at 11:00 PM
Revised 3/14/97
1. Policy of Policies to be issued:
ALTA OWNER'S POLICY (10-17-92) $263,000.00
Proposed Insured:
Cox Radio, Inc.
ALTA LOAN POLICY (10-17-92) $
Proposed Insured:
2. The estate or interest in the land described or referred to in this
Commitment and covered herein is a fee simple, and title thereto is at the
effective date hereof vested in:
Harmon Communications, Inc.
3. The Land is described as follows:
SEE EXHIBIT A ATTACHED HERETO AND MADE A PART HEREOF
<PAGE>
A.L.T.A COMMITMENT
CHICOAGO TITLE INSURANCE COMPANY
SCHEDULE A, continued
Commitment Number: 509600794AL
EXHIBIT A
The East 1/2 of the Southwest 1/4 of the Northeast 1/4 of Section 4, Township 29
South, Range 21
East, LESS AND EXCEPT the following: the South 15O feet and LESS commence at
the
railroad spike marking the Northeast corner of the Southwest 1/4 of the
Northeast 1/4 of said Section
4; run thence South (assumed bearing) along the East boundary of said Southwest
1/4 of the
Northeast 1/4, a distance of 43.04 feet to a point; thence North 88 degrees
57'40" West, a distance 30.00
feet to an iron rod on the existing Westerly right-of-way line of Sydney Dover
Road, said point
being the point of beginning; thence South along said Westerly right-of-way line
(which line is
parallel with and 30.00 feet West of said East boundary of the Southwest 1/4 of
the Northeast 1/4)
a distance of 192.74 feet to an iron rod; thence North 88 degrees 57'40" West a
distance of 113.00 feet
to an iron rod; thence North 192.74 feet to an iron rod on the existing
Southerly right-of-way line
of Downing Street; thence South 88 degrees 57'40" East, along said Southerly
right-of-way line, a
distance of 113.00 feet to an iron rod and the point of beginning.
Being more particularly described as follows:
Commence at the railroad spike marking the Northeast comer of the Southwest 1/4
of the
Northeast 1/4 of Section 4, Township 29 South, Range 21 East, Hillsborough
County, Florida, run
thence South (assumed bearing) along the East line of said Southwest 1/4 of the
Northeast 1/4,
a distance of 43.04 feet, thence North 88 degrees 57'40" West a distance of
30.00 feet to a paint on the
Westerly right-of-way line of Sydney Dover Road; thence South along said
Westerly right-of-way
line a distance of 192.74 feet to the: point of Beginning, thence continuing
along said Westerly
right-of-way (which line is 30.00 feet West of and parallel to the East line of
said Southwest 1/4
of the Northeast 1/4) South, a distance of 937.45 feet; thence departing said
Westerly right-of-way
line North 89 degrees 22'15" West slang a line 150.00 feet North of and parallel
to the South line of said
Southwest 1/4 of the Northeast 1/4 a distance of 635,40 feet to a point on the
West line at the
East 1/2, of said Southwest 1/4 of the Northeast 1/4; thence North 00 degrees
15'34" East along said West
line: a distance of 1134.66 feet to a-point on the Southerly right-of-way line
of Downing Street;
thence South 88 degree 57'40" East along said Southerly right-of-way line a
distance of 517.33 feet;
thence departing said Southerly right-of-way line South, a distance of 192.74
feet; thence South
88 degrees 57'40" East a distance of 113.00 feet to the Point of Beginning.
<PAGE>
A.L.T.A COMMITMENT
CHICOAGO TITLE INSURANCE COMPANY
SCHEDULE B - Section 1
Commitment Number 509600794AL
I. The following are the requirements to be complied with:
1. Instruments necessary to create the estate or interest to be insured must
be properly executed, delivered and duly filed for record.
a. Corporate Warranty Deed Harmon Communications, Inc. to Proposed Insured
conveying the lands described in Schedule "A". Satisfactory evidence must be
furnished as to the proper incorporation of Harmon Communications, Inc., a
corporation organized under the laws of the State of Florida. In addition, proof
as to the current standing of said corporation and if the proposed instrument of
conveyance is to be executed by an officer other than a Vice President, Chief
Executive Officer, or President, a certified resolution authorizing said officer
to execute on behalf of the corporation must be recorded.
2. Payment of the full consideration to, or for the account of, the grantors
or mortgagors.
3. Payment of all taxes, charges, assessments, levied and assessed against
subject premises, which are due and payable.
4. Satisfactory evidence should be had that improvements and/or repairs or
alterations thereto are completed; that contractor, subcontractors and
materialmen are all paid.
5. Intentionally deleted.
6. Satisfactory evidence must be furnished showing that Cox Radio, Inc. a
corporation organized under the laws of its state of incorporation, had been
properly incorporated and is currently in good standing in that state.
7. Intentionally deleted.
8. Satisfaction of that certain mortgage executed by Harmon Communications,
Inc., a Florida corporation to WWRM, Inc., a Delaware corporation filed October
17, 1995 in Official Records Book 7923, Page 86, of the Public Records of
Hillsborough County, Florida. The original note secured by the aforedescribed
mortgage must be produced and canceled.
9. Termination or Partial Release of the Financing Statement from Harmon
Communications, Inc., Debtor, to WWRM, Inc., Secured Party, and filed October
17, 1995 in Official Records Book 7923, Page 101, of the Public Records of
Hillsborough County, Florida.
10. Intentionally deleted.
11. Intentionally deleted.
<PAGE>
A.L.T.A COMMITMENT
CHICOAGO TITLE INSURANCE COMPANY
SCHEDULE B - Section 2
Commitment Number 509600794AL
II. Schedule B of the policy or policies to be issued will contain
exceptions to the following matters unless the same are disposed of to the
satisfaction Company.
1. Defects, liens, encumbrances, adverse claims or other matters, if any,
created, first appearing in the public records or attaching subsequent to the
effective date hereto but prior to the date the proposed Insured acquires for
value of record the estate or interest or mortgage thereon covered by this
Commitment.
2. Standard Exceptions:
a. Rights or claims of parties in possession not shown by the public
records.
b. Encroachments, overlaps, boundary line disputes, or other matters which
would be disclosed by an accurate survey and inspection of the premises.
c. Easements, or claims of easements, not shown by the public records.
d. Any lien, or right to a lien, for service, labor, or material heretofore
or hereafter furnished, imposed by law and not shown by the public records.
e. Taxes or special assessments which are not shown as existing liens by the
public records.
f. Any claim that any portion of said lands are sovereign lands of the State
of Florida, including submerged, filled or artificially exposed lands and lands
accreted to such lands.
g. Taxes and assessments for the year 1997 and subsequent years, which are
not yet due and payable.
3. Standard exceptions (b) and (c) may be removed from the policy when a
satisfactory survey and surveyor's report and inspection of the premises is
made.
4. Standard exceptions (a) and (d) may be removed upon receipt of a
satisfactory affidavit-indemnity from the party shown in title and in possession
stating who is in possession of the lands and whether there are improvements
being made at date of commitment or contemplated to commence prior to the date
of closing which will not have been paid for in full prior to the closing.
5. Intentionally deleted.
6. Intentionally deleted.
7. Exception is taken to the following matters shown on that certain
preliminary survey prepared by International Land Services, Inc. dated December
16, 1996 and referred to as Job Order Number 96-12-16:
a. Overhead wires along west property line and Northeast corner of property;
b. Rights of others to 15' foot ditch running through property and 20' ditch
along Southeast portion of property for drainage and other purposes;
c. Building violates 50' setback line Northern portion of property; and
d. Deletion of standard survey exceptions 2. b. and c. will be effective
upon receipt of original signed and sealed survey.
<PAGE>
SCHEDULE 1.2B
--------------
RRC Real Property
-----------------
WALR-FM Tower Site (owned) - See attached legal description.
<PAGE>
WALR FM TOWER SITE
Legal Description: (SEE ATTACHED)
<PAGE>
Gwinnett Parcel
Legal Description
All that tract or parcel of land lying and being in land lots 305, 306,
312 and 313, Gwinnett County, Georgia and being more particularly described
as follows:
Beginning at an iron pin set on the southeasterly right-of-way line of
Spalding Drive (a 60' foot right-of-way), said point being 690.48 feet from the
intersection of said southeasterly right-of-way line of Spalding Drive with the
northeasterly right-of-way line of Winters Chapel Road (a 60' foot right-of-
way); running thence along said right-of-way line of Spalding Drive north
58 degrees 04 minutes 00 seconds east a distance of 310.12 feet to a point and
north 58 degrees 11 minutes 00 seconds east a distance of 444.31 feet to a
rebar found; thence leaving said right-of-way line of Spalding Drive and
running south 35 degrees 20 minutes 27 seconds east a distance of 1273.33 feet
to a rebar found; thence running south 51 degrees 48 minutes 22 seconds west
a distance of 512.22 feet to an iron pin set; thence running approximately 1349
feet along, the centerline of Crooked Creek the following courses and distances
(i) south 66 degrees 40 minutes 25 seconds east a distance of 12.16 feet to
a
point; (ii) south 81 degrees 26 minutes 39 seconds east a distance of 54.92
feet to a point; (iii) south 49 degrees 37 minutes 15 seconds east a distance of
20.85 feet to a point; (iv) south 04 degrees 10 minutes 18 seconds west a
distance of 24.98 feet to a point; (v) south 27 degrees 45 minutes 14 seconds
west a distance of 43.13 feet to a point: (vi) south 07 degrees 36 minutes 03
seconds east a distance of 45.79 feet to a point; (vii) south 27 degrees 54
minutes 33 seconds east a distance of 41.26 feet to a point; (viii) south 49
degrees 41 minutes 02 seconds east a distance of 37.96 feet to a paint; (ix)
south 50 degrees 20 minutes 31 seconds east distance of 45.90 feet to a
point; (x) south 35 degrees 56 minutes 33 seconds east a distance of 41.75
feet to a point; (xi) south 47 degrees 00 minutes 02 seconds east a distance of
61.12 feet to a point; (xii) south 22 degrees 17 minutes 10 seconds east a
distance of 98.35 feet to a point; (xiii) . south 55 degrees 01 minute 33
seconds
east a distance of 48.26 feet to a point; (xiv) south 60 degrees 58 minutes 47
seconds east a distance of 49.69 feet to a point; (xv) south 10 degrees 04
minutes 24 seconds east a distance of 37.32 fact to a point; (xvi) south 14
degrees 03 minutes 07 seconds west a distance of 61.64 feet to a point; (xvii)
south 12 degrees 49 minutes 20 seconds west a distance of 44.53 feet to a
point; (xviii) south 71 degrees 18 minutes 33 seconds east a distance of 41.22
feet to a point; (xix) south 53 degrees 23 minutes 02 seconds east a distance
of 42.05 feet to a point; (xx) south 21 degrees 50 minutes 56 seconds east a
distance of 75.29 feet to a point (xxi) south 07 degrees 34 minutes 33 sec-
onds east a distance of 29.11 feet to a point; (xxii) south 75 degrees 20
minutes 23 seconds east a distance of 28.44 feet to a point; (xxiii) north 45
<PAGE>
degrees 07 minutes 18 seconds east a distance of 38.35 feet to a point; (xxiv)
north 69 degrees 13 minutes 00 seconds east a distance of 43.51 feet to a
point; (xxv) south 84 degrees 08 minutes 28 seconds east a distance of 44.09
feet to a point; (xxvi) south 58 degrees 25 minutes 46 seconds east a distance
of 47.81 feet to a point; (xxvii) south 51 degrees 45 minutes 58 seconds east a
distance of 52.24 feet to a point; (xxviii) south 43 degrees 15 minutes 31
seconds east a distance of 39.86 feet to a point; (xxix) south 28 degrees 18
minutes 35 seconds east a distance of 46.46 feet to a point; and (xxx) south
31 degrees 48 minutes 49 seconds east a distance of 50.75 feet to a point;
thence leaving said centerline of Crooked Creek and running south 09 degrees
44 minutes 03 seconds west a distance of 427.78 feet to an iron pin set; thence
running south 85 degrees 15 minutes 53 seconds west a distance of 960.39 feet
to an iron pin set; thence running approximately 508 feet along the centerline
of a branch as follows (i) north 35 degrees 26 minutes 23 seconds east a
distance of 8.92 feat to a point; (iii) north 23 degrees 06 minutes 56 seconds
east a distance of 15.88 feet to a point; (iii) north 08 degrees 21 minutes 15
seconds east a distance of 33.20 feet to a point; (iv) north 04 degrees 52
minutes 27 seconds west a distance of 25.50 feet to a point; (iv) north 46
degrees 17 minutes 53 seconds west a distance of 15.40 feet to a point; (vi)
north 98 degrees 36 minutes 30 seconds west a distance of 16.60 feet to a
point; (vii) north 26 degrees 25 minutes 03 seconds west a distance of 34.83
feet to a point; (viii) north 18 degrees 27 minutes 59 seconds west a distance
of 39.78 feat to a point; (vix) north 22 degrees 57 minutes 35 seconds west a
distance of 25.19 feet to a point; (x) north 06 degrees 30 minutes 26 seconds
west a distance of 23.46 feet to a point; (xi) north 08 degrees 38 minutes 04
seconds east a distance of 40.29 feet to a point; (xii) north 01 degree 04
minutes 25 seconds east a distance of 23.41 feet to a point; (xiii) north 13
degrees 06 minutes 59 seconds west a distance of 22.61 feet to a point; (xiv)
north 19 degrees 34 minutes 39 seconds east a distance of 17.88 feet to a
point; (xv) north 28 degrees 41 minutes 23 seconds west a distance of 25.55
feet to a point; (xvi) north 23 degrees 24 minutes 53 seconds west a distance
of 21.40 feet to a point; (xvii) north 29 degrees 34 minutes 01 second west a
distance of 20.82 feet to a point; (xviii) north 29 degrees 53 minutes 13
seconds west a distance of 34.26 fact to a point; (xix) north 03 degrees 56
minutes 23 seconds west a distance of 23.89 feet to 1 point; (xx) north 06
degrees 20 minutes 25 seconds cast a distance of 23.43 feet to a point; (xxi)
north 45 degrees 53 minutes 39 seconds west a distance of 14.62 feet to a
point; and (xxii) north 36 degrees 33 minutes 02 seconds west a distance of
4.87 feet to an iron pin set; thence leaving centerline of said branch and
running south 60 degrees 32 minutes 29 seconds west a distance of 53.82 feet
to an iron pin set; thence running north 22 degrees 14 minutes 51 seconds
west a distance of 76.53 feet to a rebar found; thence running north 53
degrees 23 minutes 04 seconds west a distance of 102.23 feet to an iron pin
set; thence running north 19 degrees 59 minutes 43 seconds west a distance of
129.50 feet to an iron pin set; thence running north 03 degrees 48 minutes 52
seconds west a distance of 150.83 feet to a rebar found; thence running north
48 degrees 55 minutes 19 seconds west a distance of 53.87 feet to an iron pin
set; thence running south 59 degrees 42 minutes 36 seconds west a distance
75.86 feet to a rebar found; thence running north 47 degrees 30 minutes 48
<PAGE>
seconds west a distance of 96.39 feet to a rebar found; thence running north
14 degrees 38 minutes 28 seconds west a distance of 119.98 feet to an iron pin
set; thence running north 18 degrees 31 minutes 40 seconds west a distance of
170.38 feet to an iron pin set; thence running north 06 degrees 36 minutes 55
seconds west a distance of 132.05 feet to a rebar found; thence running north
10 degrees 43 minutes 19 seconds west adistance of 92.32 feet to a rebar
found; thence running north 10 degrees 02 minutes 05 seconds east a distance
of 197.38 feet to a rebar found; thence running north 33 degrees 49 minutes
01 second west a distance of 88.93 feet to a rebar found; thence running
north 68 degrees 46 minutes 59 seconds west a distance of 109.16 feet to a
rebar found; thence running north 45 degrees 36 minutes 15 seconds west a
distance of 46.10 feet to a rebar found; thence running north 07 degrees
minutes 58 seconds east a distance of 223.53 feet to an iron pin set; thence
running north 00 degrees 00 minutes 00 seconds east a distance of 198.88 feet
to an iron pin set; thence running north 21 degrees 44 minutes 40 seconds
east a distance of 159,23 feet to an iron pin set on that southeasterly
right-of-
wyy line of Spalding Drive, said iron pin set being the POINT OF BEGINNG.
Said property being shown on that certain survey prepared for Ring Radio
Company by Hannon, Meeks & Bagwell, Surveyors & Engineers, Inc., bearing
the seal and certification of Mack L. Meeks, Georgia Registered Land Surveyor
No. 1497, dated April 20, 1989, and containing 61.5976 acres more or less.
<PAGE>
SCHEDULE 1.3A
-------------
Cox Licenses
------------
WSUN(AM), Plant City, Florida Main Station License
WLP-954 Aural STL
Tower Registration #1 #1035349
Tower Registration #2 #1035350
Tower Registration #3 #1035351
STL Transmit Tower #1017603
KLUP(AM), Terrell Hills, Texas Main Station License
KPM-473 Remote Pickup
WMG-488 Aural STL
Tower Registration #1 #1051210
Tower Registration #2 #1051211
<PAGE>
SCHEDULE 1.3B
-------------
RRC Licenses
------------
WALR(FM), Athens, Georgia Main Station License
WMV-274 Aural STL
<PAGE>
SCHEDULE 5.3
------------
Consents
--------
1. Approval of DOJ and FTC under the HSR Act.
2. The consent of the FCC to the Cox FCC Application, the RRC FCC Application
and the Salem FCC Application.
<PAGE>
SCHEDULE 5.4
------------
Governmental Approvals
----------------------
Approval of DOJ and FTC under the HSR Act.
<PAGE>
SCHEDULE 5.5
------------
Litigation
----------
None.
<PAGE>
SCHEDULE 5.7
------------
Title to and Consideration of Tangible Personal Property
--------------------------------------------------------
None.
<PAGE>
SCHEDULE 5.8
------------
Title to and Condition of Real Property
---------------------------------------
None.
<PAGE>
SCHEDULE 5.10
-------------
FCC Compliance
--------------
None.
<PAGE>
SCHEDULE 5.12
-------------
Environmental Matters
---------------------
None.
<PAGE>
SCHEDULE 5.14
-------------
Taxes
-----
None.
<PAGE>
Schedule 1.1C
--------------
The equipment at the KKHT Spendora site consists of:
1. Two Harris 20 kW transmitters with combiner
2. One Burke remote control
3. One TFT modulation monitor
4. One Mosley digital STL receiver
5. One Optimod digital processor
6. One Zyphyr III ISDN
7. One 25kW dummy load
8. Two antennas (main and Aux.)
9. Two coax runs, one 1600 ft., one 2,100 ft.
The equipment at the KKHT Scott Road site consists of:
1. Two Harris 25 kW transmitters
2. One 25kW dummy load
3. One modulation monitor
4. One Zyphyr ISDN
5. One ERI antenna
6. 1,200 ft. of coax
7. One audio limiter
The Salem Station uses the STL of radio station KENR located on real property
also leased by South Texas Broadcasting, Inc. After Closing, Salem shall
reasonably cooperate with Cox to temporarily allow Cox to continue to use STL
equipment on the property associated with radio station KENR until such time as
alternative arrangements can be made by Cox. Notwithstanding the foregoing,
Salem shall not be obligated to transfer any tangible personal property
associated with any STL for the Salem Station unless it is used solely in the
operation of the Salem Station and is located at the Splendora or Scott Road
antenna sites.
<PAGE>
Schedule 1.2C
--------------
1. Splendora Antenna Site Lease - dated June 1, 1998, between South Texas
Broadcasting, Inc and Sonsinger Broadcasting Company of Houston, LP.
2. Scott Road Antenna Site Lease - dated March 3, 1995 by and between South
Texas Broadcasting, Inc. and the Lessor as set forth therein.
3. The Salem Station uses the STL of radio station KENR located on real
property also leased by South Texas Broadcasting, Inc. After Closing, Salem
shall reasonably cooperate with Cox to temporarily allow Cox to continue to use
STL equipment on the property associated with radio station KENR until such time
as alternative arrangements can be made by Cox. Notwithstanding the foregoing,
Salem shall not be obligated to transfer any real property or interests in
leases of real property associated with any STL for the Salem Station except for
the lease set forth in paragraphs 1 and 2 of this Schedule.
<PAGE>
Schedule 1.3C
--------------
1. BLH-980617KB
2. WDT939
Prior to Closing, Salem intends to file an FCC form 302-FM Application to
license the Scott Road Antenna Site for auxiliary use.
The Salem Station uses the STL of radio station KENR located on real property
also leased by South Texas Broadcasting, Inc. After Closing, Salem shall
reasonably cooperate with Cox to temporarily allow Cox to continue to use STL
equipment on the property associated with radio station KENR until such time as
alternative arrangements can be made by Cox. Notwithstanding the foregoing,
Salem shall not be obligated to transfer any licenses associated with any STL
for the Salem Station unless it is used solely in the operation of the Salem
Station.
<PAGE>
Schedule 7.3
-------------
1. Approval of DOJ and FCC under the HSR Act.
2. The consent of the FCC.
<PAGE>
Schedule 7.4
-------------
1. Approval of DOJ and FCC under the HSR Act.
2. The consent of the FCC.
<PAGE>
Schedule 7.5
-------------
Salem is currently involved in a proceeding between it and the Comptroller for
the State of Texas regarding a refund of sales taxes paid by Salem which were
alleged by the Comptroller to have been owed by a predecessor in interest to the
Salem Station. Salem does not anticipate that the proceeding will have an
adverse effect on this transaction, the Salem Assets or Salem's ability to
perform its obligations hereunder.
<PAGE>
Schedule 7.8
-------------
None.
<PAGE>
Schedule 7.9
-------------
Prior to Closing, Salem intends to file an FCC form 302-FM Application to
license the Scott Road Antenna Site for auxiliary use.
The Salem Station uses the STL of radio station KENR located on real property
also leased by South Texas Broadcasting, Inc. After Closing, Salem shall
reasonably cooperate with Cox to temporarily allow Cox to continue to use STL
equipment on the property associated with radio station KENR until such time as
alternative arrangements can be made by Cox. Notwithstanding the foregoing,
Salem shall not be obligated to transfer any licenses associated with any STL
for the Salem Station unless it is used solely in the operation of the Salem
Station.
<PAGE>
Schedule 7.10
--------------
None.
<PAGE>
Schedule 7.12
--------------
None.
<PAGE>
Schedule 7.14
--------------
Salem is currently involved in a proceeding between it and the Comptroller for
the State of Texas regarding a refund of sales taxes paid by Salem which were
alleged by the Comptroller to have been owed by a predecessor in interest to the
Salem Station. Salem does not anticipate that the proceeding will have an
adverse effect on this transaction, the Salem Assets or Salem's ability to
perform its obligations hereunder.
