Exhibit 2.3
ASSET PURCHASE AGREEMENT
BY AND AMONG
BIG CITY RADIO, INC.,
BIG CITY RADIO-CHI, L.L.C.
as Seller,
and
SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC.
Purchaser
Dated as of December 31, 2002
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS AND REFERENCES .................................... 1
ARTICLE 2. PURCHASE AND SALE ............................................. 2
2.1 Purchase and Sale of Assets ......................................... 2
2.1.1 FCC Licenses ............................................... 2
2.1.2 Owned Transmitter Sites .................................... 2
2.1.3 Leased Transmitter Sites ................................... 2
2.1.4 Transmitter Equipment ...................................... 2
2.1.5 Studio Site ................................................ 3
2.1.6 Studio Equipment ........................................... 3
2.1.7 Certain Intangible Property ................................ 3
2.1.8 Business Records ........................................... 3
2.2 Excluded Assets ..................................................... 3
2.2.1 Cash ....................................................... 3
2.2.2 Receivables ................................................ 3
2.2.3 Deposits and Prepaid Expenses .............................. 4
2.2.4 Intellectual Property ...................................... 4
2.2.5 Certain Books and Records .................................. 4
2.2.6 Securities ................................................. 4
2.2.7 Insurance .................................................. 4
2.2.8 Time Sales Agreements ...................................... 4
2.2.9 Pre-Closing Claims ......................................... 4
2.2.10. Rights Under this Agreement ................................ 4
2.2.11. Employee Benefit Plans ..................................... 4
2.2.12. Name ....................................................... 5
2.2.13. Other Excluded Assets ...................................... 5
2.3 Assumed Contracts ................................................... 5
ARTICLE 3. PURCHASE PRICE; CLOSING ....................................... 5
3.1 Purchase Price ...................................................... 5
3.2 Time of Closing ..................................................... 5
3.3 Closing Procedures .................................................. 6
3.4 Allocation of Purchase Price ........................................ 6
3.5 Prorations .......................................................... 6
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SELLER ...................... 7
4.1 Organization; Good Standing ......................................... 7
4.2 Due Authorization ................................................... 8
4.3 Execution and Delivery .............................................. 8
4.4 Governmental Approvals .............................................. 8
4.5 Title to Personal Property .......................................... 8
4.6 Transmitter and Studio Sites ........................................ 9
4.7 Tangible Personal Property. .......................................... 9
4.8 FCC Licenses ......................................................... 9
4.9 Reports .............................................................. 10
4.10 Taxes ................................................................ 10
4.11 Environmental Matters ................................................ 10
4.12 Litigation. .......................................................... 11
4.13 Contracts and Agreements 11
4.14 Business Records ..................................................... 12
4.15 Third Party Consents ................................................. 12
4.16 Finders and Brokers .................................................. 12
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PURCHASER ..................... 12
5.1 Organization and Good Standing ....................................... 12
5.2 Due Authorization .................................................... 12
5.3 Execution and Delivery ............................................... 13
5.4 Consents ............................................................. 13
5.5 Finders and Brokers .................................................. 13
5.6 Purchaser's Qualification ............................................ 13
5.7 Financial Ability .................................................... 14
ARTICLE 6. CERTAIN COVENANTS AND AGREEMENTS ................................ 14
6.1 Regulatory Approvals ................................................. 14
6.2 Third Party Consents and Notices ..................................... 15
6.3 Access to Information ................................................ 16
6.4 Confidentiality ...................................................... 16
6.5 Public Announcements ................................................. 17
6.6 Ordinary Course of Business .......................................... 17
6.7 Control of the Station ............................................... 17
6.8 Risk of Loss ......................................................... 17
6.9 Collection of Receivables ............................................ 18
6.10 Time Brokerage Agreement ............................................. 19
6.11 Cooperation With WXXY Owner .......................................... 19
6.12 Employee Related Matters ............................................. 19
ARTICLE 7. CONDITIONS TO PURCHASER'S CLOSING ............................... 19
7.1 Representations and Warranties ....................................... 20
7.2 Covenants ............................................................ 20
7.3 FCC Order ............................................................ 20
7.4 No Orders ............................................................ 20
7.5 Third Party Consents ................................................. 20
7.6 Closing Deliveries ................................................... 20
ARTICLE 8. CONDITIONS TO SELLER'S CLOSING .................................. 21
8.1 Representations and Warranties ....................................... 21
8.2 Covenants ............................................................ 21
8.3 FCC Order ............................................................ 21
8.4 No Orders ............................................................ 21
-ii-
8.5. Closing Deliveries ................................................. 21
ARTICLE 9. DOCUMENTS TO BE DELIVERED AT CLOSING ............................ 22
9.1. Delivery by Seller ................................................. 22
9.2. Delivery by Purchaser .............................................. 22
ARTICLE 10. TERMINATION .................................................... 22
10.1. Termination ........................................................ 22
10.2. Effect of Termination .............................................. 23
ARTICLE 11. MISCELLANEOUS PROVISIONS ....................................... 23
11.1. No Survival ........................................................ 23
11.2. Specific Performance ............................................... 24
11.3. Additional Actions, Documents and Information ...................... 24
11.4. Fees and Expenses .................................................. 24
11.5. Transfer Taxes ..................................................... 24
11.6. Notices ............................................................ 24
11.7. Waiver ............................................................. 26
11.8. Benefit and Assignment ............................................. 26
11.9. Entire Agreement; Amendment ........................................ 26
11.10. Severability ....................................................... 27
11.11. Headings ........................................................... 27
11.12. Governing Law; Jurisdiction ........................................ 27
11.13. Signature in Counterparts .......................................... 27
-iii-
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of the
31st day of December, 2002, by and among Big City Radio, Inc., a Delaware
corporation ("BCR"), BIG CITY RADIO-CHI, L.L.C., a Delaware limited liability
company ("BCR License Sub"; BCR together with BCR License Sub, "Seller"), and
SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC., a Delaware corporation
("Purchaser").
WHEREAS, Seller is the licensee of the following radio broadcast
stations (collectively the "Stations"): WDEK-FM, licensed to De Xxxx, Illinois;
WKIE-FM, licensed to Arlington Heights, Illinois; and WKIF-FM, licensed to
Kankakee, Illinois;
WHEREAS, Seller owns the assets which are used in the operation of
the Stations;
WHEREAS, contemporaneously herewith, Seller and Purchaser are
executing a time brokerage agreement for the Stations, which shall become
effective as of January 6, 2003 (the "Time Brokerage Agreement");
WHEREAS, Purchaser is a subsidiary of Spanish Broadcasting System,
Inc., a Delaware corporation ("Parent");
WHEREAS, simultaneously with the execution and delivery of this
Agreement, as an inducement to the willingness of Seller to enter into this
Agreement and the Time Brokerage Agreement and to consummate the transactions
contemplated hereby and thereby, Parent has entered into, for Seller's benefit,
a Guaranty Agreement (the "Guaranty"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires
to purchase from Seller, certain of the radio station properties and assets
relating to the Stations as described herein under the terms and conditions
herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the
respective meanings assigned thereto in Annex I attached hereto and incorporated
herein for
all purposes of this Agreement (such definitions to be equally applicable to
both the singular and plural forms of the terms defined). Unless otherwise
specified, all references herein to "Articles" or "Sections" are to Articles or
Sections of this Agreement. The word "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation".
ARTICLE 2.
PURCHASE AND SALE
2.1. Purchase and Sale of Assets.
Subject to the conditions set forth in this Agreement, at the
Closing, Seller shall assign, transfer, convey and deliver to Purchaser, and
Purchaser shall purchase and accept from Seller, all right, title and interest
of Seller in and to the following assets relating to the Stations (the
"Purchased Assets"), free and clear of all Liens (other than Permitted Liens):
2.1.1. FCC Licenses.
All licenses, construction permits or authorizations
issued by or pending before the FCC for use in the operation of the Stations
that are set forth on Schedule 2.1.1 attached hereto, together with any and all
renewals, extensions and modifications thereof (the "FCC Licenses").
2.1.2. Owned Transmitter Sites.
The real property owned by Seller at the sites described
on Schedule 2.1.2 hereto (the "Owned Transmitter Sites").
2.1.3. Leased Transmitter Sites.
The leasehold interests of Seller at each of the sites
described on Schedule 2.1.3 hereto (the "Leased Transmitter Sites" and together
with the Owned Transmitter Sites, the "Transmitter Sites").
2.1.4. Transmitter Equipment.
The broadcast towers, antennas, main and back-up
transmitters and generators, STLs and other tangible personal property owned by
Seller and located, or otherwise held for use, at the Transmitter Sites that are
set forth on Schedule 4.7, together with replacements thereof and additions
thereto made between the date hereof and the Closing.
-2-
2.1.5. Studio Site.
The leasehold interest of Seller at the site described on
Schedule 2.1.5 hereto (the "Studio Site").
2.1.6. Studio Equipment.
All studio equipment, production and imaging equipment,
office equipment, furniture, vehicles and other items of tangible personal
property owned by Seller and used, or held for use, in the operation of the
Stations that are set forth on Schedule 4.7 attached hereto, together with
replacements thereof and additions thereto made between the date hereof and the
Closing.
2.1.7. Certain Intangible Property.
The call letters, Xxxxx frequencies, trade names and
internet domain names of the Stations.
2.1.8. Business Records.
Unless as may be otherwise required by law, the books and
records related to the Purchased Assets, such as property tax records, logs, all
materials maintained in the FCC public file relating to the Stations, technical
data, political advertising records and all other records, correspondence with
and documents pertaining to governmental authorities and similar third parties
(the "Business Records").
2.2. Excluded Assets.
Notwithstanding the terms of Section 2.1, Seller shall not assign,
transfer, convey or deliver to Purchaser, and Purchaser shall not purchase and
accept, and the Purchased Assets shall not include, any of Seller's right, title
and interest in and to any of the following assets (the "Excluded Assets"):
2.2.1. Cash.
All cash and cash equivalents of Seller or the Stations on
hand on the day immediately preceding the Closing Date.
2.2.2. Receivables.
Any accounts receivable, notes receivable or other
receivables of Seller (including Tax refunds).
-3-
2.2.3. Deposits and Prepaid Expenses.
All deposits and prepaid expenses of the Stations.
2.2.4. Intellectual Property.
Except as specifically set forth in Section 2.1 above, all
intellectual property of Seller related to the operation of the Stations,
including promotional materials, tapes, record libraries and similar items of
intellectual property.
2.2.5. Certain Books and Records.
Seller's corporate seal, minute books, charter documents,
corporate stock record books and other books and records that pertain to the
organization of Seller.
2.2.6. Securities.
All securities of any kind owned by Seller.
2.2.7. Insurance.
All insurance contracts or proceeds thereof.
2.2.8. Time Sales Agreements.
All time sales agreements or barter rights of the
Stations.
2.2.9. Pre-Closing Claims.
All claims arising out of acts occurring prior to the
Closing Date, or claims that relate to the period prior to the Closing Date.
2.2.10. Rights Under this Agreement.
All of the rights of Seller under or pursuant to this
Agreement or any other rights in favor of Seller pursuant to the other
agreements contemplated hereby or thereby.
2.2.11. Employee Benefit Plans.
All pension, profit sharing, retirement, bonus, medical,
dental, life, accident insurance, disability, executive or deferred
compensation, and other similar fringe or employee benefit plans.
-4-
2.2.12. Name.
All rights to the name "Big City" and "Big City Radio" and
any logo or variation thereof and the goodwill associated therewith.
2.2.13. Other Excluded Assets.
Any other assets of Seller not specifically identified in
Section 2.1 of this Agreement.
2.3. Assumed Contracts.
At the Closing, Purchaser shall assume the obligations of Seller for
periods on and after the Closing Date under the agreements set forth on Schedule
2.3 hereof (the "Assumed Contracts"), and Purchaser agrees to pay and perform
the Assumed Contracts from and after the Closing Date. Except as specifically
set forth in the preceding sentence, Purchaser does not assume and shall in no
event be liable for any Liability of the Stations or Seller, including any
Liabilities with respect to any employees of Seller.
ARTICLE 3.
PURCHASE PRICE; CLOSING
3.1. Purchase Price.
The purchase price for the Purchased Assets shall be Twenty-Two
Million Dollars ($22,000,000) (the "Purchase Price"). Purchaser shall pay the
Purchase Price in cash to Seller at Closing by wire transfer of immediately
available funds to an account or accounts identified by Seller in writing prior
to Closing.
3.2. Time of Closing.
The closing for the sale and purchase of the Purchased Assets (the
"Closing") shall be held at the offices of Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000 (or such other place as may be agreed upon by the parties
in writing). Subject to the satisfaction of the conditions precedent set forth
in Article 7 and Article 8 of this Agreement, the Closing shall occur on such
date (the "Closing Date") that is the fifth (5th) Business Day after the date on
which the FCC Order shall have been granted. The Closing shall be deemed to be
effective as of 12:01 a.m. on the Closing Date.
-5-
3.3. Closing Procedures.
At the Closing, Seller shall deliver to Purchaser special warranty
deeds with respect to the Owned Transmitter Sites in a form reasonably
acceptable to both Seller and Purchaser, and such bills of sale, instruments of
assignment, transfer and conveyance and similar documents as Purchaser shall
reasonably request. Against such delivery, Purchaser shall (a) pay the Purchase
Price to Seller in accordance with Section 3.1 above and (b) execute and deliver
an assumption agreement with respect to the Assumed Contracts in a form
reasonably acceptable to both Seller and Purchaser. Each party will cause to be
prepared, executed and delivered all other documents required to be delivered by
such party pursuant to this Agreement and all other appropriate and customary
documents as another party or its counsel may reasonably request for the purpose
of consummating the transactions contemplated by this Agreement. All actions
taken at the Closing shall be deemed to have been taken simultaneously at the
time the last of any such actions is taken or completed.
3.4. Allocation of Purchase Price.
3.4.1. Seller and Purchaser each represent, warrant, covenant, and
agree with each other that the Purchase Price shall be allocated among the
classes of Purchased Assets for each Station for all purposes (including
financial, accounting and Tax purposes), as agreed by the parties within sixty
(60) days after the date hereof. If Seller and Purchaser are unable to agree on
such allocation within sixty (60) days following execution of this Agreement,
Seller and Purchaser agree to retain a nationally recognized appraisal firm
experienced in valuing radio broadcast properties which is mutually acceptable
to Seller and Purchaser (the "Appraisal Firm") to appraise the classes of
Purchased Assets of each Station. The Appraisal Firm shall be instructed to
perform an appraisal of the classes of Purchased Assets of each Station and to
deliver a report to Seller and Purchaser as soon as reasonably practicable.
Purchaser shall pay the fees, costs and expenses of the Appraisal Firm whether
or not the transactions contemplated hereby are consummated.
3.4.2. Seller and Purchaser agree, pursuant to Section 1060 of the
Code, that the Purchase Price shall be allocated in accordance with this Section
3.4, and that all Tax returns and reports shall be filed consistent with such
allocation. Notwithstanding any other provision of this Agreement, the
provisions of this Section 3.4 shall survive the Closing Date without
limitation.
3.5. Prorations.
3.5.1. Subject to the terms and conditions of the Time Brokerage
Agreement, all items of income and expense arising from the operation of the
Stations with respect to the Purchased Assets and the Assumed Contracts on or
-6-
before the close of business on the Closing Date shall be for the account of
Seller and thereafter shall be for the account of Purchaser. Proration of the
items described below between Seller and Purchaser shall be effective as of
11:59 p.m., local time, on such date and shall occur as follows with respect to
those rights, liabilities and obligations of Seller transferred to and assumed
by Purchaser hereunder.
3.5.2. Subject to the terms and conditions of the Time Brokerage
Agreement, liability for state and local Taxes assessed on the Purchased Assets
payable with respect to the tax year in which the Closing Date falls and the
annual FCC regulatory fees for the Stations payable with respect to the year in
which the Closing Date falls shall each be prorated as between Seller and
Purchaser on the basis of the number of days of the Tax year elapsed to and
including the Closing Date.
3.5.3. Prepaid items, deposits, credits and accruals such as water,
electricity, telephone, other utility and service charges, lease expenses,
license fees (if any) and payments under any contracts or utility services to be
assumed by Purchaser shall be prorated between Seller and Purchaser on the basis
of the period of time to which such liabilities, prepaid items and accruals
apply.
3.5.4. All prorations shall be made and paid insofar as feasible on
the Closing Date; any prorations not made on such date shall be made as soon as
practicable (not to exceed ninety (90) days) thereafter. Seller and Purchaser
agree to assume, pay and perform all costs, liabilities and expenses allocated
to each of them pursuant to this Section 3.5.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
4.1. Organization; Good Standing.
BCR License Sub is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
BCR is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. Seller has all requisite power and authority
to own and lease its properties and carry on its business as currently
conducted.
-7-
4.2. Due Authorization.
Subject to the FCC Order and any requisite approval of BCR's
stockholders, Seller has full power and authority to enter into and perform this
Agreement and the Time Brokerage Agreement and to carry out the transactions
contemplated hereby and thereby. Subject to obtaining any requisite approval of
BCR's stockholders, Seller has taken all necessary action to approve the
execution and delivery of this Agreement and the Time Brokerage Agreement and
the transactions contemplated hereby and thereby. This Agreement and the Time
Brokerage Agreement each constitutes the legal, valid and binding obligation of
Seller, enforceable against it in accordance with its terms, except as may be
limited by the availability of equitable remedies or by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally.
4.3. Execution and Delivery.
Neither the execution and delivery by Seller of this Agreement or the
Time Brokerage Agreement nor the consummation by Seller of the transactions
contemplated hereby or thereby will: (a) conflict with or result in a breach of
any provisions of Seller's organizational documents, (b) subject to the FCC
Order, violate any Law or Order of any court or Governmental Authority; or (c)
except as set forth on Schedule 4.3 hereto, violate or conflict with or
constitute a default under (or give rise to any right of termination,
cancellation or acceleration under), or result in the creation of any Lien on
any of the Purchased Assets pursuant to, any material agreement, indenture,
mortgage or other instrument to which Seller is a party or by which it or its
assets may be bound or affected.
4.4. Governmental Approvals.
No approval, authorization, consent, order or other action of, or
filing with, any court or Governmental Authority is required in connection with
the execution and delivery by Seller of this Agreement or the Time Brokerage
Agreement or the consummation of the transactions contemplated hereby or
thereby, other than those of the FCC.
4.5. Title to Personal Property.
Except for leased property, Seller is the sole and exclusive legal
owner of all right, title and interest in, and has good and marketable title to,
all of the Purchased Assets constituting personal property, free and clear of
all Liens except (a) Permitted Liens (b) Liens which will be released on or
prior to the Closing, or (c) the Assumed Contracts.
-8-
4.6. Transmitter and Studio Sites.
4.6.1. Seller has good and marketable title to the Owned Transmitter
Sites, free and clear of all Liens, except for Permitted Liens.
4.6.2. Seller has valid, binding and enforceable leasehold interests,
which are free and clear of all Liens except for Permitted Liens, in and to the
Leased Transmitter Sites and Studio Site.
4.6.3. Seller has not received any notice of, and has no knowledge
of, any material violation of any zoning, building, health, fire, water use or
similar Law in connection with the Transmitter Sites or Studio Site. To the
knowledge of Seller, no fact or condition exists which would result in the
termination or impairment of access of the Stations to the Transmitter Sites or
the Studio Site or discontinuation of necessary sewer, water, electrical, gas,
telephone or other utilities or services.
4.7. Tangible Personal Property.
Schedule 4.7 sets forth a list, complete and accurate in all material
respects, of the Purchased Assets which consist of tangible personal property.
All of such tangible personal property, viewed as a whole and not on an asset by
asset basis, are in good condition and working order, ordinary wear and tear
excepted, and are suitable for the uses for which intended, free from any known
defects except such minor defects that do not interfere with the continued
present use thereof by Seller.
4.8. FCC Licenses.
Schedule 2.1.1 lists and accurately describes all of the FCC Licenses
necessary for the lawful ownership and operation of the Stations and the conduct
of their businesses, except where the failure to hold any such FCC License would
not have a Material Adverse Effect. Seller has furnished to Purchaser true and
accurate copies of all of the FCC Licenses. Each such FCC License is in full
force and effect and is valid under applicable Laws; the Stations are being
operated in compliance in all material respects with the Communications Act, and
all rules, regulations and policies of the FCC; and to the knowledge of Seller,
no event has occurred which (whether with or without notice, lapse of time or
the happening or occurrence of any other event) is reasonably likely to result
in the revocation or termination of any FCC License or the imposition of any
restriction of such a nature as would have a Material Adverse Effect, except for
proceedings of a legislative or rule-making nature intended to affect the
broadcasting industry generally. The Stations, each of their physical
facilities, electrical and mechanical systems and transmitting and studio
equipment are being operated in all material respects in accordance with the
specifications of the FCC Licenses. The FCC Licenses are unimpaired by any act
or omission of Seller or any of Seller's officers, directors or
-9-
employees and, Seller has fulfilled and performed all of Sellers obligations
with respect to the FCC Licenses and has full power and authority thereunder. No
application, action or proceeding is pending for the renewal or modification of
any of the FCC Licenses. No event has occurred which, individually or in the
aggregate, and with or without the giving of notice or the lapse of time or
both, would constitute grounds for revocation or non-renewal thereof.
4.9. Reports.
Seller has duly filed all reports required to be filed by any Law or
Order of any court or Governmental Authority and has made payment of all charges
and other payments, if any, shown by such reports to be due and payable. All
reports required to be filed by Seller with the FCC with respect to the Stations
have been filed. Such reports and disclosures are complete and accurate in all
material respects.
4.10. Taxes.
All Tax reports and returns required to be filed by or relating to
the Purchased Assets have been filed with the appropriate Governmental
Authority, and there have been paid all Taxes, penalties, interest,
deficiencies, assessments or other charges due with respect to such Taxes, as
reflected on the filed returns or claimed to be due by such federal, state or
local taxing authorities (other than Taxes, deficiencies, assessments or claims
which are being contested in good faith and which in the aggregate are not
material). Seller has not received any written notice of any examinations or
audits pending or unresolved examinations or audit issues with respect to
Seller's federal, state or local Tax returns that could adversely affect the
Purchased Assets. All additional Taxes, if any, assessed as a result of such
examinations or audits have been paid, and to Seller's knowledge, there are no
pending claims or proceedings relating to, or asserted for, Taxes, penalties,
interest, deficiencies or assessments against the Purchased Assets.
4.11. Environmental Matters.
4.11.1. Except as set forth in Schedule 4.11, with respect to the
Purchased Assets, Seller is in material compliance with all Environmental Laws.
4.11.2. To Seller's knowledge, except as set forth in Schedule 4.11,
no condition exists at the Transmitter Sites or Studio Site that is reasonably
likely to result in a claim under Environmental Laws, which would have a
Material Adverse Effect.
4.11.3. Except as set forth in Schedule 4.11, and except as would
not reasonably be expected to have a Material Adverse Effect, there are no
pending or,
-10-
to the knowledge of Seller, threatened actions, suits, claims, or other legal
proceedings based on (and Seller has not received any written notice of any
complaint, order, directive, citation, notice of responsibility, notice of
potential responsibility, or information request from any Governmental Authority
arising out of or attributable to): (a) the current or past presence at any part
of the Transmitter Sites or Studio Site of Hazardous Materials; (b) the current
or past release or threatened release into the environment from the Transmitter
Sites or Studio Site (including into any storm drain, sewer, septic system or
publicly owned treatment works) of any Hazardous Materials; (c) the off-site
disposal of Hazardous Materials originating on or from the Transmitter Sites or
Studio Site or the businesses or Purchased Assets of Seller; (d) any violation
of Environmental Laws at any part of the Transmitter Sites or Studio Site (i)
arising from Seller's activities involving Hazardous Materials, or (ii) to
Seller's knowledge, from the activities of any other Person involving Hazardous
Materials.
4.11.4. Except as set forth in Schedule 4.11, and except as would not
reasonably be expected to have a Material Adverse Effect, Seller has been duly
issued all permits, licenses, certificates and approvals required under any
Environmental Law to operate the Purchased Assets as they are currently
operated.
4.11.5. Seller has made available to Purchaser all environmental
assessments, reports, audits and other documents in its possession or under its
control that relate to the Transmitter Sites or Seller's compliance with
Environmental Laws with respect to the Purchased Assets.
4.11.6. Notwithstanding any other provision of this Agreement, this
Section 4.11 sets forth Seller's exclusive representations and warranties with
respect to the environmental condition of the Purchased Assets, Seller's
compliance with Environmental Laws, Hazardous Materials, Environmental Laws or
other environmental matters.
4.12. Litigation.
There is no Order of any court or Governmental Authority and no
action, suit, proceeding or investigation, judicial, administrative or otherwise
that is pending or, to Seller's knowledge, threatened against or affecting the
Stations.
4.13. Contracts and Agreements.
Seller is not in default in any material respect under any of the
Assumed Contracts, and, as of the Closing Date, Seller will have paid all sums
and performed in all material respects all obligations under the Assumed
Contracts which are required to be paid or performed prior to the Closing Date.
-11-
4.14. Business Records.
Seller has, and after the Closing, Purchaser will have, the right to
use the Business Records included in the Purchased Assets, free and clear of any
royalty or other payment obligations.
4.15. Third Party Consents.
Except as set forth in Section 4.4, the only consents from any Person
which are required to be obtained by Seller in connection with the execution and
delivery by Seller of this Agreement and the consummation of the transactions
contemplated hereby are set forth on Schedule 4.15 (the "Third Party Consents").
4.16. Finders and Brokers.
Except for Xxxxxxxxx Broadcast Brokerage, the fees and expenses of
which shall be borne solely by Seller, no person has as a result of any
agreement entered into by Seller any valid claim against any of the parties
hereto for a brokerage commission, finder's fee or other like payment.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.1. Organization and Good Standing.
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power and authority to own and lease its properties and carry on its business as
currently conducted.
5.2. Due Authorization.
Subject to the FCC Order, Purchaser has full power and authority to
enter into this Agreement and the Time Brokerage Agreement and to carry out
Purchaser's obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Time Brokerage Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Purchaser. This Agreement and the Time
Brokerage Agreement have been duly executed and delivered by Purchaser and each
constitutes the legal, valid and binding obligation of Purchaser, enforceable
against it in accordance with its respective terms, except as may be limited by
-12-
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally or general equitable principles.
5.3. Execution and Delivery.
Neither the execution and delivery by Purchaser of this Agreement or
the Time Brokerage Agreement nor the consummation of the transactions
contemplated hereby or thereby will: (a) conflict with or result in a breach of
the certificate of incorporation or bylaws of Purchaser; (b) subject to the FCC
Order, violate any Law or Order of any court or Governmental Authority; or (c)
violate or conflict with or constitute a default under (or give rise to any
right of termination, cancellation or acceleration under) any material
agreement, indenture, mortgage, or other instrument to which Purchaser is a
party or by which it is bound or affected.
5.4. Consents.
No approval, authorization, consent, order or other action of, or
filing with, any court or Governmental Authority is required in connection with
the execution and delivery by Purchaser of this Agreement or the Time Brokerage
Agreement or the consummation of the transactions contemplated hereby or
thereby, other than those of the FCC. No approval, authorization or consent of
any other Person is required in connection with the execution and delivery by
Purchaser of this Agreement and the Time Brokerage Agreement and the
consummation of the transactions contemplated hereby or thereby, except as may
have been previously obtained by Purchaser.
5.5. Finders and Brokers.
No person has as a result of any agreement entered into by Purchaser
any valid claim against any of the parties hereto for a brokerage commission,
finder's fee or other like payment.
5.6. Purchaser's Qualification.
5.6.1. Purchaser is legally, financially and otherwise qualified to
be the assignee of the FCC Licenses, and no waivers shall be required by the FCC
for the consummation of the transactions contemplated hereby or the grant of the
FCC Order. To Purchaser's knowledge, there are no facts or proceedings which
would reasonably be expected (a) to disqualify Purchaser under the
Communications Act or otherwise from holding the FCC Licenses, (b) to cause the
FCC to flag the FCC Application and/or initiate a review of the potential
effects on competition and/or diversity of the transaction, or (c) to cause the
FCC not to approve the assignment of the FCC Licenses to Purchaser.
-13-
5.6.2. To the knowledge of Purchaser, Purchaser or any Affiliate of
Purchaser shall not be required to sell, dispose of or surrender any FCC license
held by Purchaser or any such Affiliate with respect to any broadcast
properties, or any other properties or businesses of Purchaser or such
Affiliate, as may be required under the Communications Act or the antitrust laws
in order to consummate the sale and purchase of the Purchased Assets
contemplated by this Agreement.
5.7. Financial Ability.
Purchaser has, and on the Closing Date will have, cash available that
is sufficient to enable Purchaser to consummate the transactions contemplated by
this Agreement.
ARTICLE 6.
CERTAIN COVENANTS AND AGREEMENTS
6.1. Regulatory Approvals.
6.1.1. No later than three (3) Business Days after the date hereof,
Seller and Purchaser shall jointly cause to be filed by Seller's FCC counsel one
or more applications with the FCC requesting its consent to the assignment of
the FCC Licenses from BCR License Sub to Purchaser, which applications are
attached hereto at Exhibit A (the "FCC Application"). Each party shall pay its
own expenses in connection with the preparation and prosecution of the FCC
Application and shall share equally any filing fees associated with the FCC
Application.
6.1.2. Upon the terms and subject to the conditions set forth in this
Agreement, Seller and Purchaser shall each use their respective commercially
reasonable efforts to promptly (a) take, or to cause to be taken, all actions,
and to do, or to cause to be done, and to assist and cooperate with the other
parties in doing all things proper or advisable under applicable Law or
otherwise to consummate and make effective the transactions contemplated by this
Agreement; (b) obtain from any Governmental Authority or other Person any
actions, non-actions, clearances, waivers, consents, approvals, permits or
Orders required to be obtained by Seller, Purchaser or any of their respective
Affiliates in connection with the authorization, execution, delivery and
performance of this Agreement, the consummation of the other transactions
contemplated hereby and thereby and the assignment of the FCC Licenses from BCR
License Sub to Purchaser; (c) furnish all information required for any
application or other filing to be made pursuant to any applicable Law or any
applicable regulations of any Governmental Authority in connection with the
transactions contemplated by this Agreement, including filings in connection
with the FCC Application, and to supply promptly any additional information and
documentary material that may be requested in connection with
-14-
such filings or applications; (d) avoid the entry of, or have vacated or
terminated, any Order that would restrain, prevent or delay the Closing or the
FCC Order, including defending against and opposing any lawsuits or other
proceedings (including any FCC reconsideration or review), whether judicial or
administrative, reviewing or challenging this Agreement, the consummation of the
other transactions contemplated hereby and thereby or the assignment of the FCC
Licenses from BCR License Sub to Purchaser; and (e) execute and deliver any
additional instruments necessary to assign the FCC Licenses from BCR License Sub
to Purchaser or to consummate any other transactions contemplated by this
Agreement. No party to this Agreement shall consent to any voluntary delay of
the assignment of the FCC Licenses from BCR License Sub to Purchaser or the
consummation of the other transactions contemplated hereby at the behest of any
Governmental Authority or other Person without the consent of the other party,
which consent shall not be unreasonably withheld, conditioned or delayed.
6.1.3. Notwithstanding anything in this Agreement to the contrary, if
the Closing occurs before the FCC Order becomes a Final Order, the terms of
Section 6.1.2 shall survive the Closing until the FCC Order becomes a Final
Order; provided, however, that such terms shall only survive as applied to
actions relating to the obtaining of the FCC Order and such FCC Order becoming a
Final Order. No assignment of the FCC Licenses shall occur prior to obtaining
the FCC Order.
6.2. Third Party Consents and Notices.
6.2.1. As promptly as practicable after the date of this Agreement,
Seller will use its commercially reasonable efforts to obtain all Third Party
Consents and landlord estoppel letters with respect to the Leased Transmitter
Sites and Studio Site, in forms reasonably acceptable to both Seller and
Purchaser. All Third Party Consents shall be in form reasonably satisfactory to
Purchaser, and none shall provide for any increase in cost or other change in
terms and conditions after the Closing which would be materially adverse to
Purchaser.
6.2.2. If any Third Party Consent has not been obtained prior to
Closing, and prior to Closing an Alternative Arrangement has been obtained with
respect to the Assumed Contract to which such Third Party Consent pertains (in
each case, a "Deferred Contract"), then Seller shall retain, until such time as
such Third Party Consent shall have been obtained by Seller, all rights to and
liabilities under the Deferred Contract. Until the assignment of the Deferred
Contract, (a) Seller shall continue to use commercially reasonable efforts and
Purchaser shall cooperate with Seller to obtain all required consents or
approvals to remove any other impediments to such assignment, and (b) Seller
shall cooperate with Purchaser (and Purchaser shall cooperate with Seller) in
any lawful arrangement to provide (to the extent permitted without breach of
such Deferred Contract) that Purchaser shall receive the benefits of such
Deferred Contract after the Closing Date to the same extent,
-15-
and without any additional cost or expense to Purchaser, as if such Deferred
Contract had been assigned to Purchaser (such arrangement, an "Alternative
Arrangement"). To the extent that Purchaser receives such benefits, Purchaser
shall assume Seller's Liabilities thereunder arising on or after the Closing
Date with respect to such Alternative Arrangement and Purchaser shall perform
any such obligations of Seller arising under such Alternative Arrangement. If,
subsequent to the Closing, Seller shall obtain all required consents or
approvals required to assign any Deferred Contract, the Deferred Contract for
which consent or approval to assign has been obtained shall at that time be
deemed to be conveyed, granted, bargained, sold, transferred, setover, assigned,
released, delivered and confirmed to Purchaser and assumed by Purchaser, without
need of further action by Seller or of further documentation except for notice
from Seller to Purchaser that such consent or approval has been obtained; and
from and after the effective date such Deferred Contract is assigned to
Purchaser, (i) no party shall have any further liability under the Alternative
Arrangement related thereto, and (ii) the Deferred Contract shall be deemed to
be an Assumed Contract.
6.2.3. Prior to Closing, Seller shall provide written notice to third
parties which have entered into material contracts with any of the Stations
(other than the Assumed Contracts) regarding (a) the existence of this Agreement
and the transactions contemplated hereby and (b) that Purchaser is not assuming
any obligations of Seller or the Stations in respect of the contracts with such
third parties. Seller shall promptly provide copies of these written notices to
Purchaser.
6.3. Access to Information.
From the date hereof until the Closing (upon reasonable notice to Seller),
during normal business hours, Seller shall, and shall cause its officers,
directors, employees, auditors and agents to, (a) afford the officers, employees
and authorized agents and representatives of Purchaser reasonable access to the
offices, properties, books and records of Seller to the extent related to the
Purchased Assets, and (b) furnish to the officers, employees and authorized
agents and representatives of Purchaser such additional information regarding
the Purchased Assets as Purchaser may from time to time reasonably request in
order to assist Purchaser in fulfilling its obligations under this Agreement and
to facilitate the consummation of the transactions contemplated hereby;
provided, however, that such investigation shall not unreasonably interfere with
any of the businesses or operations of Seller or any Station.
6.4. Confidentiality.
The terms of the confidentiality agreement dated as of December 19, 2002
(the "Confidentiality Agreement") between Seller and Purchaser are hereby
incorporated herein by reference and shall continue in full force and effect
until the
-16-
Closing, at which time such Confidentiality Agreement and the obligations of
Purchaser under this Section 6.4 shall terminate; provided, however, that the
Confidentiality Agreement shall terminate only in respect of that portion of the
Evaluation Material (as defined in the Confidentiality Agreement) exclusively
relating to the transactions contemplated by this Agreement and the Purchased
Assets. If this Agreement is, for any reason, terminated prior to the Closing,
the Confidentiality Agreement shall nonetheless continue in full force and
effect.
6.5. Public Announcements.
Seller and Purchaser shall consult with each other before issuing any press
release or otherwise making any public statements with respect to this Agreement
or the transactions contemplated herein and shall not issue any such press
release or make any such public statement without the prior written consent of
the other party, which shall not be unreasonably withheld; provided, however,
that a party may, without the prior written consent of the other party, issue
such press release or make such public statement as may be required by Law or
any listing agreement with a national securities exchange to which Seller or
Purchaser is a party if it has used all commercially reasonable efforts to
consult with the other party and to obtain such party's consent but has been
unable to do so in a timely manner.
6.6. Ordinary Course of Business.
Subject to the terms of the Time Brokerage Agreement and the obligations of
the parties thereunder, during the period from the date hereof to the Closing
Date, unless the prior consent of Purchaser is first obtained, Seller shall
cause the Stations to not knowingly take any action which would cause the
conditions set forth in Section 7.1 and Section 7.2 not to be satisfied as of
the Closing Date.
6.7. Control of the Station.
Prior to the Closing, Purchaser shall not, directly or indirectly, control,
supervise, direct, or attempt to control, supervise, or direct, the operations
of the Stations; such operations, including complete control and supervision of
all of the Stations programs, employees, and policies, shall be the sole
responsibility of Seller until the Closing, except as contemplated by the Time
Brokerage Agreement.
6.8. Risk of Loss.
Seller shall bear the risk of all damage to, loss of or destruction of any
of the Purchased Assets between the date of this Agreement and the Closing Date.
If any material portion of the Purchased Assets (other than items that are
obsolete and not necessary for the continued operations of the Stations) shall
suffer any material damage or destruction prior to the Closing Date, Seller
shall promptly notify
-17-
Purchaser in writing of such damage or destruction, shall promptly take all
necessary steps to restore, repair or replace such assets at Seller's sole
expense, and shall advise Purchaser in writing of the estimated cost to complete
such restoration, repair or replacement and all amounts actually paid as of the
date of the estimate. If necessary and provided that Seller is diligently
pursuing such restoration, repair or replacement, the Closing Date shall be
extended for a period not exceeding ninety (90) days to accomplish such
restoration, repair or replacement. If such restoration, repair or replacement
is not accomplished prior to the Closing Date, as the same may be extended as
provided herein, Purchaser shall have the right, at its option, to proceed with
the Closing and receive at the Closing the insurance proceeds or an assignment
of the right to receive such insurance proceeds to which Seller otherwise would
be entitled, whereupon Seller shall have no further liability to Purchaser for
such damage, loss or destruction.
6.9. Collection of Receivables.
As of January 6, 2003 (the "TBA Date"), Seller shall assign the Accounts
Receivables to Purchaser for collection purposes only, and, within five (5)
Business Days after the TBA Date, Seller shall furnish to Purchaser a list of
the Accounts Receivables by accounts and the amounts then owing. Purchaser
agrees that during the term of the Time Brokerage Agreement and for a period of
one hundred fifty (150) days following the Closing Date (the "Collection
Period"), without any requirement to litigate to collect the Accounts
Receivables, to use its commercially reasonable efforts (with at least the care
and diligence Purchaser uses to collect its own accounts receivable) to collect
for Seller the Accounts Receivables and to remit to Seller on the fifth day
following the last day of each month occurring during the Collection Period (or,
if any such day is a Saturday, Sunday or holiday, on the next Business Day),
collections received by Purchaser with respect to the Accounts Receivables. With
each remittance, Purchaser shall furnish a statement of the amounts collected
and the Persons from whom such amounts were collected. Purchaser shall not make
any referral or compromise of any Accounts Receivables to a collection agency or
attorney for collection and shall not compromise for less than full value any
Account Receivable without the prior written consent of Seller. Any Account
Receivable not collected by Purchaser within the Collection Period shall revert
to Seller. Purchaser shall reassign, without recourse to Purchaser, each Account
Receivable and deliver to Seller, all records relating thereto on the same day
as it remits to Seller the collections received. All payments in respect of the
Accounts Receivables received during the Collection Period shall be first
applied to the oldest balance then due on the Accounts Receivables unless the
account debtor indicates in writing that payment is to be applied otherwise or
if the payment refers to a specific invoice or is evidenced by a payment amount
that is the exact amount of a later invoice. Purchaser agrees, upon the
reasonable request of Seller, to furnish to Seller periodic reports on the
status of Seller's Accounts Receivables.
-18-
Purchaser shall have no right to set-off any amounts collected for Accounts
Receivables for any amounts owed to Purchaser by Seller.
6.10. Time Brokerage Agreement.
Concurrently with the execution of this Agreement, Seller and Purchaser
are executing the Time Brokerage Agreement, whereby Purchaser will have the use
of substantially all of the airtime of the Stations. The Time Brokerage
Agreement will become effective as of January 6, 2003, and shall remain in
effect during the remainder of the term of this Agreement and shall terminate
upon termination of this Agreement or consummation of the acquisition of the
Purchased Assets by Purchaser hereunder. Notwithstanding anything to the
contrary contained in this Agreement or otherwise, Seller shall not be deemed to
have breached or failed to comply with any representations, warranties,
covenants, or agreements with respect to the Stations or the Purchased Assets if
such breach or failure is due or caused by any act, omission or instruction of
Purchaser under or in connection with the Time Brokerage Agreement or any
activities or transactions by Purchaser in furtherance thereof or in connection
therewith or any actions of Seller in accordance with the terms of the Time
Brokerage Agreement.
6.11. Cooperation With WXXY Owner.
For a period of six (6) months after the Closing Date, Purchaser hereby
agrees, for the direct benefit of the holder of the FCC license for radio
broadcast station WXXY-FM, licensed to Highland Park, Illinois (the "WXXY
Owner"), to permit the WXXY Owner to have access to and use of the back-up
transmitters and generators located at the Leased Transmitter Site in Arlington
Heights, Illinois as necessary in connection with the business and operation of
WXXY-FM. Seller and Purchaser shall not amend the provisions of this Section
6.11 without the prior written consent of the WXXY Owner, which consent shall
not be unreasonably withheld.
6.12. Employee Related Matters.
Purchaser and Seller agree that all employees of Seller are the
responsibility of Seller and Purchaser shall assume no Liabilities with respect
to any employees of Seller.
ARTICLE 7.
CONDITIONS TO PURCHASER'S CLOSING
The obligations of Purchaser to purchase the Purchased Assets and to
proceed with the Closing are subject to the satisfaction (or waiver in writing
by Purchaser) at or prior to the Closing of each of the following conditions:
-19-
7.1. Representations and Warranties.
The representations and warranties of Seller contained in this Agreement
shall be true and correct as of the Closing Date with the same effect as though
made at such time (except as contemplated or permitted by this Agreement),
except in all cases where the failure of any representation or warranty to be
true and correct would not have a Material Adverse Effect.
7.2. Covenants.
Seller shall have performed in all material respects the covenants and
agreements contained in this Agreement that are to be performed by Seller at or
prior to the Closing.
7.3. FCC Order.
The FCC Order shall be in full force and effect (it being understood that
Purchaser's obligations to consummate the transactions contemplated by this
Agreement shall not be subject to the condition that the FCC Order be a Final
Order).
7.4. No Orders.
No Order or temporary, preliminary or permanent injunction or restraining
order shall have been entered by any Governmental Authority which expressly
prohibits or materially restrains the transactions contemplated by this
Agreement.
7.5. Third Party Consents.
The Third Party Consents set forth on Schedule 7.5 shall have been obtained
without the imposition of any conditions materially adverse to Purchaser;
provided, that if an Alternative Arrangement has been entered into in lieu of
the receipt of any such Third Party Consent for an Assumed Contract as
contemplated by Section 6.2.2, no consents or approvals with respect to such
Assumed Contract shall be required to be obtained under this Section 7.5.
7.6. Closing Deliveries.
Purchaser shall have received each of the documents or items required to be
delivered to it pursuant to Section 9.1 hereof.
-20-
ARTICLE 8.
CONDITIONS TO SELLER'S CLOSING
The obligations of Seller to sell, transfer, convey and deliver the
Purchased Assets and to proceed with the Closing are subject to the satisfaction
(or waiver in writing by Seller) at or prior to the Closing of the following
conditions:
8.1. Representations and Warranties.
The representations and warranties of Purchaser contained in this
Agreement shall be true and correct as of the Closing Date with the same effect
as though made at such time (except as contemplated or permitted by this
Agreement), except in all cases where the failure of any representation or
warranty to be true and correct would not prevent Purchaser from consummating
this Agreement.
8.2. Covenants.
Purchaser shall have performed the covenants and agreements contained
in this Agreement that are to be performed by Purchaser as of the Closing,
except in all cases where the failure to perform such covenants and agreements
would not prevent Purchaser from consummating this Agreement.
8.3. FCC Order.
The FCC Order shall be in full force and effect (it being agreed and
understood that Seller's obligations to consummate the transactions contemplated
by this Agreement shall not be subject to the condition that the FCC Order be a
Final Order).
8.4. No Orders.
No Order or temporary, preliminary or permanent injunction or
restraining order shall have been entered by any Governmental Authority which
expressly prohibits or materially restrains the transactions contemplated by
this Agreement.
8.5. Closing Deliveries.
Seller shall have received each of the documents or items required to
be delivered to it pursuant to Section 9.2.
-21-
ARTICLE 9.
DOCUMENTS TO BE DELIVERED AT CLOSING
9.1. Delivery by Seller.
At the Closing, Seller shall deliver to Purchaser the following:
9.1.1. The deeds, bills of sale, agreements of assignment and
similar instruments of transfer to the Purchased Assets contemplated by Section
3.3 hereto.
9.1.2. A certificate, signed by an executive officer of Seller,
as to the fulfillment of the conditions set forth in Section 7.1 and Section 7.2
hereof.
9.1.3. The Business Records.
9.1.4. Any landlord estoppel letters that Seller shall have been
able to obtain prior to Closing.
9.2. Delivery by Purchaser.
At the Closing, Purchaser shall deliver to Seller the following:
9.2.1. The Purchase Price in the amount and manner set forth in
Section 3.1.
9.2.2. A certificate, signed by an executive officer of
Purchaser, as to the fulfillment of the conditions set forth in Section 8.1 and
Section 8.2 hereof.
9.2.3. An assumption agreement pursuant to which Purchaser shall
assume the Assumed Contracts.
ARTICLE 10.
TERMINATION
10.1. Termination.
This Agreement may be terminated by the mutual written agreement of
Purchaser and Seller, or, if the terminating party is not then in material
breach of its obligations hereunder, upon written notice as follows:
10.1.1. by Purchaser if Seller is in material breach of its
obligations hereunder, such that the conditions set forth in Section 7.1 and
Section 7.2 would
-22-
not be satisfied as of the Closing, and such breach has not been cured by Seller
within thirty (30) days of written notice of such breach (or such longer period
of time if the breach cannot be reasonably cured within thirty (30) days and
Seller is diligently attempting to cure such breach);
10.1.2. by Seller if Purchaser is in material breach of its
obligations hereunder, such that the conditions set forth in Section 8.1 and
Section 8.2 would not be satisfied as of the Closing, and such breach has not
been cured by Purchaser within thirty (30) days of written notice of such breach
(or such longer period of time if the breach cannot be reasonably cured within
thirty (30) days and Purchaser is diligently attempting to cure such breach);
10.1.3. by either Purchaser or Seller if the FCC denies the FCC
Application in an order that has become a Final Order, or has designated the FCC
Application for a hearing; or
10.1.4. by either Purchaser or Seller if the Closing has not
occurred on or before such date which is six (6) months after the date of this
Agreement.
10.2. Effect of Termination.
In the event of termination of this Agreement pursuant to Section
10.1 above, all rights and obligations of the parties under this Agreement shall
terminate without any liability of any party to any other party (except for any
liability of any party for any material breach of this Agreement, in which case
any non-breaching party shall have all rights and remedies available at law or
in equity). Notwithstanding anything to the contrary contained herein, the
provisions of Sections 6.4 and 11.4 shall expressly survive the termination of
this Agreement.
ARTICLE 11.
MISCELLANEOUS PROVISIONS
11.1. No Survival.
The representations and warranties in this Agreement shall terminate
at, and will have no further force and effect after, the Closing. No covenants
or agreements of the parties contained in this Agreement shall survive the
Closing, except that covenants that contemplate or may involve actions to be
taken or obligations in effect after the Closing shall survive in accordance
with their terms.
-23-
11.2. Specific Performance.
Seller acknowledges that the Purchased Assets and the transactions
contemplated hereby are unique, that a failure by Seller to complete such
transactions will cause irreparable injury to Purchaser, and that actual damages
for any such failure may be difficult to ascertain and may be inadequate.
Consequently, Seller and Purchaser agree that Purchaser shall be entitled, in
the event of a default by Seller, to specific performance of any of the
provisions of this Agreement in addition to any other legal or equitable
remedies to which Purchaser may otherwise be entitled. In the event any action
is brought, the prevailing party shall be entitled to recover court costs and
reasonable attorneys' fees.
11.3. Additional Actions, Documents and Information.
Purchaser agrees that it will, at any time, prior to, at or after the
Closing Date, take or cause to be taken such further actions, and execute,
deliver and file or cause to be executed, delivered and filed such further
documents and instruments and obtain such consents, as may be reasonably
requested by Seller in connection with the consummation of the transactions
contemplated by this Agreement. Seller agrees that it will, at any time, prior
to, at or after the Closing Date, take or cause to be taken such further
actions, and execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments and obtain such consents, as may be
reasonably requested by Purchaser in connection with the consummation of the
transactions contemplated by this Agreement.
11.4. Fees and Expenses.
Except as otherwise expressly provided in this Agreement, all fees
and expenses, including fees and expenses of counsel, financial advisors, and
accountants incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fee or expense,
whether or not the Closing shall have occurred.
11.5. Transfer Taxes.
All sales, use, transfer, filing, recordation, registration and
similar Taxes and fees arising from or associated with the transactions
contemplated hereunder, shall be borne by the party obligated to pay the same
under applicable Law. Purchaser or Seller, as required by Law, shall file all
necessary documentation with respect to, and make all payments of, such taxes
and fees on a timely basis.
11.6. Notices.
All notices, demands, requests, or other communications which may be
or
-24-
are required to be given or made by any party to any other party pursuant to
this Agreement shall be in writing and shall be hand delivered, mailed by
first-class registered or certified mail, return receipt requested, postage
prepaid, delivered by overnight air courier, or transmitted by telegram, telex,
or facsimile transmission addressed as follows:
If to Purchaser:
Spanish Broadcasting System, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, XX XX
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile (000) 000-0000
If to Seller:
Big City Radio, Inc.
c/o Metromedia Company
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
0000 Xxxxxxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-25-
or such other address as the addressee may indicate by written notice to the
other parties.
Each notice, demand, request, or communication which shall be given
or made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a telex) the answerback being deemed conclusive but not exclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
11.7. Waiver.
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement or under any other instrument or
document given in connection with or pursuant to this Agreement shall impair any
such right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
11.8. Benefit and Assignment.
11.8.1. No party hereto shall assign this Agreement, in whole or in
part, whether by operation of law or otherwise, without the prior written
consent of the other party hereto.
11.8.2. Any purported assignment contrary to the terms hereof shall
be null, void and of no force and effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns as permitted hereunder. No Person, other than the parties
hereto, and, solely with respect to the provisions of Section 6.11 hereof, the
WXXY Owner, is or shall be entitled to bring any action to enforce any provision
of this Agreement against any of the parties hereto, and the covenants and
agreements set forth in this Agreement shall be solely for the benefit of, and
shall be enforceable only by, the parties hereto or their respective successors
and assigns as permitted hereunder.
11.9. Entire Agreement; Amendment.
This Agreement, the Time Brokerage Agreement and the Guaranty,
-26-
including the Schedules and Exhibits hereto and thereto and the other
instruments and documents referred to herein or therein or delivered pursuant
hereto or thereto contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior oral or written agreements,
commitments or understandings with respect to such matters. No amendment,
modification or discharge of this Agreement shall be valid or binding unless set
forth in writing and duly executed by the party or parties against whom
enforcement of the amendment, modification or discharge is sought.
11.10. Severability.
If any part of any provision of this Agreement or any other contract,
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said contract, agreement, document or writing.
11.11. Headings.
The headings of the sections and subsections contained in this
Agreement are inserted for convenience only and do not form a part or affect the
meaning, construction or scope thereof.
11.12. Governing Law; Jurisdiction.
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating thereto, shall be governed by and construed
under and in accordance with the laws of the State of New York, without giving
effect to the conflicts of law principles thereof (other than Section 5-1401 of
the New York General Obligations Law). The parties hereto hereby waive personal
service of any process in connection with any such action, suit or proceeding
and agree that the service thereof may be made by certified or registered mail
addressed to or by personal delivery to the other party, at such other party's
address set forth pursuant to Section 11.6 hereof. In the alternative, in its
discretion, any of the parties hereto may effect service upon any other party in
any other form or manner permitted by law.
11.13. Signature in Counterparts.
This Agreement may be executed in separate counterparts, none of
which need contain the signatures of all parties, each of which shall be deemed
to be an original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for
-27-
more than the number of counterparts containing the respective signatures of, or
on behalf of, all of the parties hereto.
[The remainder of this page intentionally left blank.]
-28-
IN WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement as of the date first above written.
SELLER
BIG CITY RADIO, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
BIG CITY RADIO-CHI, L.L.C.
By: BIG CITY RADIO, INC.,
Its Managing Member
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
PURCHASER
SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: President
ANNEX I
DEFINITIONS
"Accounts Receivables" shall mean all accounts receivable with respect
to the Stations as of the end of the broadcast day immediately preceding the TBA
Date.
"Affiliates" of a party shall mean persons or entities that directly,
or indirectly through one or more intermediaries, control or are controlled by,
or are under common control with, such party.
"Agreement" shall have the meaning set forth in the Preamble.
"Alternative Arrangement" shall have the meaning set forth in Section
6.2.2.
"Appraisal Firm" shall have the meaning set forth in Section 3.4.1.
"Assumed Contracts" shall have the meaning set forth in Section 2.3.
"BCR" shall have the meaning set forth in the Preamble.
"BCR License Sub" shall have the meaning set forth in the Preamble.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Business Records" shall have the meaning set forth in Section 2.1.8.
"Closing" shall have the meaning set forth in Section 3.2.
"Closing Date" shall have the meaning set forth in Section 3.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
all Laws promulgated pursuant thereto or in connection therewith.
"Collection Period" shall have the meaning set forth in Section 6.9.
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Confidentiality Agreement" shall have the meaning set forth in Section
6.4.
"Deferred Contract" shall have the meaning set forth in Section 6.2.2.
"Environmental Laws" shall mean the applicable provisions of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
("CERCLA"); 42 U.S.C. (S)9601 et seq.; the Toxic Substances Control Act
("TSCA"), 15 U.S.C. (S)2601 et seq.; the Hazardous Materials Transportation Act,
49 U.S.C. (S)5101 et seq.; the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. (S)6901 et seq.; the Clean Water Act ("CWA"), 33 U.S.C. (S)1251 et
seq.; the Safe Drinking Water Act, 42 U.S.C. (S)300f et seq.; the Clean Air Act
("CAA"), 42 U.S.C. (S)7401 et seq.; or any other applicable federal, state, or
local laws relating to Hazardous Materials generation, production, use, storage,
treatment, transportation or disposal, or the protection of the environment
"Excluded Assets" shall have the meaning set forth in Section 2.2.
"FCC" shall mean the Federal Communications Commission.
"FCC Application" shall have the meaning set forth in Section 6.1.1.
"FCC Licenses" shall have the meaning set forth in Section 2.1.1.
"FCC Order" shall mean that the FCC (including the Media Bureau
pursuant to delegated authority) has granted or given its consent, without any
condition materially adverse to Purchaser or Seller, to the assignment of the
FCC Licenses from Seller to Purchaser.
"Final Order" shall mean that the FCC Order shall have become final,
that is, that the time period for filing any protests or requests or petitions
for stay, reconsideration, rehearing, review or appeal by the FCC or a court of
competent jurisdiction of such order and the time period for the FCC or its
staff to have taken any actions to reconsider or review such order shall have
expired, and that no timely protest or request or petition for stay,
reconsideration, rehearing, review or appeal by the FCC or a court of competent
jurisdiction or action by the FCC or its staff to reconsider or review such
order shall be pending.
"Governmental Authority" shall mean any court, arbitrator, department,
commission, board, bureau, agency, authority, instrumentality or other body,
whether federal, state, municipal, foreign or other.
"Guaranty" shall have the meaning set forth in the Recitals.
"Hazardous Materials" shall mean any wastes, substances, or materials
(whether solids, liquids or gases) that are deemed hazardous, toxic, pollutants,
or contaminants, including substances defined as "hazardous wastes", "hazardous
Annex I-2
substances", "toxic substances", "radioactive materials" or other similar
designations in, or otherwise subject to regulation under, any Environmental
Laws.
"Law" shall mean any statute, law, ordinance, rule or regulation.
"Leased Transmitter Sites" shall have the meaning set forth in Section
2.1.3.
"Liabilities" shall mean, as to any Person, all debts, adverse claims,
liabilities and obligations, direct, indirect, absolute or contingent of such
Person, whether accrued, vested or otherwise, whether in contract, tort, strict
liability or otherwise and whether or not actually reflected, or required by
generally accepted accounting principles to be reflected, in such Person's
balance sheets or other books and records.
"Liens" shall mean, statutory or otherwise, security interests, claims,
pledges, licenses, equities, options, conditional sales contracts, assessments,
levies, charges or encumbrances of any nature whatsoever.
"Material Adverse Effect" or "material adverse effect" shall mean a
material adverse effect on the Purchased Assets taken as a whole, but shall
specifically exclude any material adverse effect caused by (a) factors affecting
the radio industry generally or the market in which the Stations operate, (b)
general, national, regional or local economic or financial conditions, or (c)
new governmental Laws; and provided that none of the following shall be deemed
by itself or by themselves, either alone or in combination with one another, to
constitute, create or cause a Material Adverse Effect: (i) the failure to
achieve any financial or operational targets, projections or milestones set
forth in any Seller business plan or budget, or (ii) liquidity or cash flow
deficiencies affecting Seller's business, properties, assets, liabilities,
financial condition, results of operations, properties or prospects.
"Order" shall mean any order, writ, injunction, judgment, plan or
decree of any Governmental Authority.
"Owned Transmitter Sites" shall have the meaning set forth in Section
2.1.2.
"Parent" shall have the meaning set forth in the Recitals.
"Permitted Liens" shall mean (a) Liens for taxes not yet due and
payable; (b) landlord's Liens and Liens for property taxes not delinquent; (c)
statutory Liens that were created in the ordinary course of business and which
are not delinquent; (d) restrictions or rights granted to Governmental
Authorities under applicable Law
Annex I-3
to the extent not arising pursuant to any defaults thereunder; (e) zoning,
building, or similar restrictions relating to or affecting property which do not
arise in connection with a violation of applicable Law and do not limit the
current use of the property in any material respect; (f) Liens on the
Transmitter Sites and the Studio Site that do not materially affect the current
use and enjoyment thereof in the operation of the Stations or the value of such
Transmitter Sites and Studio Site; (g) customary utility and similar easements
affecting property; and (h) Liens for which a proration adjustment is made
pursuant to Section 3.5 of this Agreement.
"Person" or "person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
organization, other form of business or legal entity or Governmental Authority.
"Purchased Assets" shall have the meaning set forth in Section 2.1.
"Purchase Price" shall have the meaning set forth in Section 3.1.
"Purchaser" shall have the meaning set forth in the Preamble.
"Seller" shall have the meaning set forth in the Preamble.
"Stations" shall have the meaning set forth in the Recitals.
"Studio Site" shall have the meaning set forth in Section 2.1.5.
"Taxes" shall mean all federal, state and local taxes (including
income, profit, franchise, sales, use, real property, personal property, ad
valorem, excise, employment, social security and wage withholding taxes) and
installments of estimated taxes, assessments, deficiencies, levies, imports,
duties, license fees, registration fees, withholdings, or other similar charges
of every kind, character or description imposed by any Governmental Authorities.
"TBA Date" shall have the meaning set forth in Section 6.9.
"Third Party Consents" shall have the meaning set forth in Section
4.15.
"Time Brokerage Agreement" shall have the meaning set forth in the
Recitals.
"Transmitter Sites" shall have the meaning set forth in Section 2.1.3.
"WXXY Owner" shall have the meaning set forth in Section 6.11.
Annex I-4
SCHEDULES
Schedule 2.1.1 FCC Licenses
Schedule 2.1.2 Owned Transmitter Sites
Schedule 2.1.3 Leased Transmitter Sites
Schedule 2.1.5 Studio Site
Schedule 2.3 Assumed Contracts
Schedule 4.3 Consents and Approvals
Schedule 4.7 Tangible Personal Property
Schedule 4.11 Environmental Matters
Schedule 4.15 Third Party Consents
Schedule 7.5 Required Third Party Consents for Closing
EXHIBITS
Exhibit A FCC Application
