Exhibit 2.1
ASSET PURCHASE AGREEMENT
BY AND AMONG
BIG CITY RADIO, INC.,
BIG CITY RADIO-LA, L.L.C.
as Seller,
and
ENTRAVISION COMMUNICATIONS CORPORATION,
as Purchaser
Dated as of December 23, 2002
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND REFERENCES..........................................1
ARTICLE 2. PURCHASE AND SALE...................................................1
2.1. Purchase and Sale of Assets.............................................1
2.1.1. FCC Licenses...................................................2
2.1.2. Leased Transmitter Sites.......................................2
2.1.3. Transmitter Equipment..........................................2
2.1.4. Studio Sites...................................................2
2.1.5. Studio Equipment...............................................2
2.1.6. Certain Intangible Property....................................2
2.1.7. Business Records...............................................3
2.2. Excluded Assets.........................................................3
2.2.1. Cash...........................................................3
2.2.2. Accounts Receivables...........................................3
2.2.3. Deposits and Prepaid Expenses..................................3
2.2.5. Securities.....................................................3
2.2.6. Insurance......................................................4
2.2.7. Time Sales Agreements..........................................4
2.2.8. Pre-Closing Claims.............................................4
2.2.9. Rights Under this Agreement....................................4
2.2.10. Employee Benefit Plans.........................................4
2.2.11. Name...........................................................4
2.3. Assumed Contracts.......................................................4
2.4. No Liabilities..........................................................4
2.4.1. Liabilities Related to the Excluded Assets.......................5
2.4.2. Liabilities Prior to the Closing Date............................5
2.4.3. Taxes............................................................5
2.4.4. Employees........................................................5
2.4.5. Liabilities Related to this Agreement........................... 5
ARTICLE 3. ESCROW DEPOSIT; PURCHASE PRICE; CLOSING.............................6
3.1. Escrow Deposit..........................................................6
3.2. Purchase Price..........................................................6
3.3. Time of Closing.........................................................6
3.4. Closing Procedures......................................................7
3.5. Allocation of Purchase Price............................................7
3.6. Prorations..............................................................8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SELLER............................8
4.1. Organization; Good Standing.............................................8
4.2. Due Authorization.......................................................9
4.3. Execution and Delivery..................................................9
4.4. Governmental Approvals..................................................9
4.5. Title to Personal Property.............................................10
4.6. Transmitter and Studio Sites...........................................10
4.7. Tangible Personal Property.............................................10
4.8. FCC Licenses...........................................................10
4.9. Reports................................................................11
4.10. Taxes..................................................................11
4.11. Environmental Matters..................................................12
4.12. Litigation.............................................................12
4.13. Contracts and Agreements...............................................13
4.14. Business Records.......................................................13
4.15. Third Party Consents...................................................13
4.16. Finders and Brokers....................................................13
4.17. Disclaimer of Warranties; Limitations of Warranties....................13
4.18. Registration Statement and Information Statement......................14
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................14
5.1. Organization and Good Standing.........................................14
5.2. Due Authorization......................................................14
5.3. Execution and Delivery.................................................15
5.4. Consents...............................................................15
5.5. Finders and Brokers....................................................15
5.6. Qualification..........................................................16
5.7. Financial Ability......................................................16
5.8. Issuance of the Shares.................................................16
5.9. Registration Statement and Information Statement.......................17
5.10. SEC Reports............................................................17
ARTICLE 6. CERTAIN COVENANTS AND AGREEMENTS..................................17
6.1. Regulatory Approvals...................................................17
6.2. Third Party Consents and Notices.......................................19
6.3. Access to Information..................................................20
6.4. Confidentiality........................................................21
6.5. Public Announcements...................................................21
6.6. Ordinary Course of Business............................................21
6.7. Control of the Station.................................................22
6.8. Risk of Loss...........................................................22
6.9. Collection of Receivables..............................................22
6.10. Time Brokerage Agreement...............................................23
6.11. Filings; Other Actions.................................................23
ARTICLE 7. CONDITIONS TO PURCHASER'S CLOSING.................................25
7.1. Representations and Warranties.........................................25
7.2. Covenants..............................................................25
7.3. FCC Order..............................................................26
7.4. HSR Act................................................................26
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7.5. No Orders.......................................................... 26
7.6. Third Party Consents............................................... 26
7.7. Closing Deliveries................................................. 26
7.8. Registration Statement................................... 26
7.9. Information Statement................................... 27
ARTICLE 8. CONDITIONS TO SELLER'S CLOSING.................................... 27
8.1. Representations and Warranties..................................... 27
8.2. Covenants.......................................................... 27
8.3. FCC Order.......................................................... 27
8.4. HSR Act............................................................ 27
8.5. No Orders.......................................................... 28
8.6. Closing Deliveries................................................. 28
8.8. Registration Statement................................... 28
8.9. Information Statement................................... 28
ARTICLE 9. DOCUMENTS TO BE DELIVERED AT CLOSING.............................. 28
9.1. Delivery by Seller................................................. 28
9.2. Delivery by Purchaser.............................................. 29
ARTICLE 10. TERMINATION...................................................... 29
10.1. Termination........................................................ 29
10.2. Effect of Termination.............................................. 30
10.3. Release of Deposit................................................. 30
ARTICLE 11. MISCELLANEOUS PROVISIONS......................................... 31
11.1. Survival........................................................... 31
11.2. Specific Performance............................................... 31
11.3. Additional Actions, Documents and Information...................... 31
11.4. Fees and Expenses.................................................. 31
11.5. Transfer Taxes..................................................... 32
11.6. Notices............................................................ 32
11.7. Waiver............................................................. 33
11.8. Benefit and Assignment............................................. 34
11.9. Entire Agreement; Amendment........................................ 34
11.10. Severability...................................................... 34
11.11. Headings.......................................................... 34
11.12. Governing Law; Jurisdiction....................................... 35
11.13. Signature in Counterparts......................................... 35
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of the 23/rd/
day of December, 2002, by and among Big City Radio, Inc., a Delaware corporation
("BCR"), BIG CITY RADIO-LA, L.L.C., a Delaware limited liability company ("BCR
License Sub"; BCR, together with BCR License Sub, "Seller"), and ENTRAVISION
COMMUNICATIONS CORPORATION, a Delaware corporation ("Purchaser").
WHEREAS, Seller is the licensee of the following radio broadcast stations
(collectively the "Stations"): KVYY-FM, licensed to Ventura, California;
KLYY-FM, licensed to Arcadia, California; and KSYY-FM, licensed to Fallbrook,
California;
WHEREAS, Seller owns the assets which are used in the operation of the
Stations; 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 words "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 all of the assets relating to the Stations (the "Purchased Assets"), free and
clear of all Liens (other than Permitted Liens), including:
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. Leased Transmitter Sites.
The leasehold interests of Seller at each of the sites described on
Schedule 2.1.2 hereto (the "Leased Transmitter Sites").
2.1.3. 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 Leased Transmitter Sites, together
with replacements thereof and additions thereto made between the date hereof and
the Closing.
2.1.4. Studio Sites.
The leasehold interests of Seller at each of the sites described on
Schedule 2.1.4 hereto (the "Studio Sites").
2.1.5. 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,
together with replacements thereof and additions thereto made between the date
hereof and the Closing.
2.1.6. Certain Intangible Property.
All intellectual property of Seller related to the operation of the
Stations, including promotional materials, tapes, record libraries, the call
letters, Xxxxx frequencies trademarks, trade names, copyrights, internet domain
names and similar items of intellectual property of the Stations, including all
of Seller's rights to use the trade name "Viva 107.1", and including all of
Seller's rights to use the
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trade names "Viva" and "Viva Alternativa" in any of the geographic areas served
by the Stations as of the date hereof.
2.1.7. 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. Accounts Receivables.
Any accounts receivable, notes receivable or other receivables of
Seller (including Tax refunds).
2.2.3. Deposits and Prepaid Expenses.
All deposits and prepaid expenses of the Stations.
2.2.4. 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.
2.2.5. Securities.
All securities of any kind owned by Seller.
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2.2.6. Insurance.
All insurance contracts or proceeds thereof.
2.2.7. Time Sales Agreements.
All time sales agreements or barter rights of the Stations.
2.2.8. 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.
2.2.9. 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.
2.2.10. 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.
2.2.11. Name.
All rights to the name "Big City" and "Big City Radio" and any logo
or variation thereof and the goodwill associated therewith, and all rights of
Seller to the trade name "Viva" and any derivatives thereof except to the extent
set forth in Section 2.1.6.
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.
2.4. No Liabilities.
Except as specifically set forth in Section 2.3 above, Purchaser does not
assume, and shall in no event be liable for, any Liability of the Stations or
Seller, including the following Liabilities:
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2.4.1. Liabilities Related to the Excluded Assets.
Any Liabilities of Seller incurred, arising from or out of, in connection
with or as a result of claims made by or against Seller with respect to the
Excluded Assets.
2.4.2. Liabilities Prior to the Closing Date.
Except as provided in the Time Brokerage Agreement, any Liabilities
incurred, arising from or out of, in connection with or as a result of the
operation of the Stations or the ownership or use of the Purchased Assets prior
to the Closing Date, and any Liabilities incurred, arising from or out of, in
connection with or as a result of Seller's operations of any assets other than
the Stations, the condition of Seller's other assets or places of business prior
to the Closing Date.
2.4.3. Taxes.
Any Liabilities of Seller for any Taxes.
2.4.4. Employees.
Any Liabilities to former or current officers, directors, employees,
shareholders or Affiliates of Seller, including any Liabilities of Seller in
connection with any employment agreements or contracts, employee benefit plans
or collective bargaining, labor or employment agreements or other similar
arrangements or obligations in respect of retiree health benefits.
2.4.5. Liabilities Related to this Agreement.
Any Liabilities of Seller incurred, arising from or out of, or in
connection with this Agreement, the transactions contemplated hereby, or the
events or negotiations leading up to this Agreement.
2.4.6. Accounts Payable.
Seller's accounts payable as of the Closing.
2.4.7. Litigation.
Any existing, pending or future litigation of Seller related to any
of the Liabilities set forth in this Section 2.4 or otherwise incurred, arising
out of, or related to events occurring prior to the Closing Date, including the
litigation set forth on Schedule 4.12.
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ARTICLE 3.
ESCROW DEPOSIT; PURCHASE PRICE; CLOSING
3.1. Escrow Deposit.
For and in partial consideration of the execution and delivery of this
Agreement, within one (1) Business Day after the execution and delivery of this
Agreement, Purchaser shall deposit in escrow with United Bank, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 (the "Deposit Escrow Agent"), an amount equal to
One Million Dollars ($1,000,000) in cash, said amount to be held as an xxxxxxx
money deposit (the "Deposit"), in accordance with the terms and conditions of
this Agreement and the Deposit Escrow Agreement dated as of the date hereof
among Purchaser, Seller and the Deposit Escrow Agent (the "Deposit Escrow
Agreement").
3.2. Purchase Price.
3.2.1. The aggregate consideration to be paid by Purchaser for the
Purchased Assets shall consist of the Cash Payment and the Shares (collectively,
the "Purchase Price"). Purchaser shall pay the Purchase Price to Seller at
Closing in the manner set forth in Section 3.2.2.
3.2.2. At the Closing, (a) Purchaser shall pay One Hundred Million
Dollars ($100,000,000) in cash (the "Cash Payment") to Seller by wire transfer
of immediately available funds to an account or accounts identified by Seller in
writing at least three (3) Business Days prior to Closing; and (b) Purchaser
shall deliver to Seller a stock certificate or stock certificates evidencing
Three Million Seven Hundred Sixty-Six Thousand Four Hundred Seventy-Eight
(3,766,478) shares of Class A Common Stock, par value $.0001 per share, of
Purchaser (the "Shares") free and clear of all Liens and restrictions on
transfer; provided, however, that the number of Shares shall be adjusted to
reflect any stock dividends, combinations, splits or similar recapitalization
events occurring or having occurred between the date of this Agreement and the
Closing with respect to the Class A Common Stock of Purchaser.
3.3. Time of Closing.
The closing for the sale and purchase of the Purchased Assets (the
"Closing") shall be held at the offices of Xxxxx & Xxxxxxx L.L.P., 0000
Xxxxxxxxxx Xxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000 (or such other place as may
be agreed upon by the parties in writing). Subject to the satisfaction or waiver
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 (5/th/) Business
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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.
3.4. Closing Procedures.
At the Closing, Seller shall deliver to Purchaser 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 Cash Payment to Seller in accordance with Section 3.2 above, (b) deliver
a stock certificate or stock certificates evidencing the Shares to Seller in
accordance with Section 3.2 above, and (c) 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.
3.5. Allocation of Purchase Price.
3.5.1. 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.
3.5.2. Seller and Purchaser agree, pursuant to Section 1060 of the
Code, that the Purchase Price shall be allocated in accordance with this Section
3.5, 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 3.5 shall survive the Closing Date without
limitation.
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3.6. Prorations.
3.6.1. Subject to the terms and conditions of the Time Brokerage
Agreement, all items of income and expense arising directly from the operation
of the Stations with respect to the Purchased Assets and the Assumed Contracts
on or 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.
3.6.2. 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.
3.6.3. Subject to the terms and conditions of the Time Brokerage
Agreement, 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.
3.6.4. 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 3.6.
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
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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.
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, the Deposit Escrow 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, the Deposit
Escrow Agreement and the Time Brokerage Agreement and the transactions
contemplated hereby and thereby. This Agreement, the Deposit Escrow 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. All approvals of Seller's stockholders
required to be obtained by Seller in connection with the execution, delivery and
performance by Seller of this Agreement and the transactions contemplated
hereby, will be obtained in compliance in all material respects with applicable
Laws, including the Delaware General Corporation Law.
4.3. Execution and Delivery.
Except as set forth on Schedule 4.3 hereto, neither the execution and
delivery by Seller of this Agreement, the Deposit Escrow 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 and compliance with the HSR Act, violate any Law or Order of any court or
Governmental Authority, which violation would have a Material Adverse Effect; or
(c) 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, the Deposit Escrow
Agreement or the Time Brokerage Agreement or the consummation of the
transactions contemplated
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hereby or thereby, other than those of the FCC and those required under the HSR
Act.
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. To Seller's knowledge, there
are no Liens on the Purchased Assets which will need to be released on or prior
to the Closing Date.
4.6. Transmitter and Studio Sites.
4.6.1. 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 Sites.
4.6.2. Seller has not received any notice of, and has no knowledge of,
any violation of any zoning, building, health, fire, water use or similar Law in
connection with the Leased Transmitter Sites or Studio Sites. 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 Leased Transmitter Sites or the
Studio Sites 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 material FCC
Licenses necessary for the lawful ownership and operation of the Stations as
currently conducted. 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
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(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 material fine, forfeiture or
penalty, 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 employees
and, Seller has fulfilled and performed all of Seller's material obligations
with respect to the FCC Licenses and has full power and authority thereunder.
Except as set forth on Schedule 4.8, 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
of any of the FCC Licenses.
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, except
where the failure to so file or make payment would not, individually or in the
aggregate, have a Material Adverse Effect. All reports required to be filed by
Seller with the FCC with respect to the Stations have been filed, except where
the failure to so file would not have a Material Adverse Effect. 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.
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4.11. Environmental Matters.
4.11.1. Except as would not reasonably be expected to have a Material
Adverse Effect, with respect to the Purchased Assets, Seller is in compliance
with all Environmental Laws.
4.11.2. Except as would not reasonably be expected to have a Material
Adverse Effect, there are no pending or, 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 Leased Transmitter Sites of
Hazardous Materials; (b) the current or past release or threatened release into
the environment from the Leased Transmitter Sites (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 Leased Transmitter Sites or the businesses or Purchased Assets of
Seller; (d) any violation of Environmental Laws at any part of the Leased
Transmitter Sites arising from Seller's activities involving Hazardous
Materials.
4.11.3. 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.
4.11.4. 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 Leased Transmitter Sites or Seller's compliance with
Environmental Laws with respect to the Purchased Assets.
4.11.5. 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. Notwithstanding any other provision of this
Agreement, Purchaser hereby waives and releases all claims against Seller
arising under Environmental Laws, including any statutory rights to
contribution, with respect to the Purchased Assets.
4.12. Litigation.
Except as set forth on Schedule 4.12, there is no Order of any court or
Governmental Authority and no action, suit, proceeding or investigation,
judicial,
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administrative or otherwise that is pending or, to Seller's knowledge,
threatened against or affecting the Stations which, if adversely determined
would have a Material Adverse Effect or which challenges the validity of any of
the transactions contemplated by this Agreement.
4.13. Contracts and Agreements.
Seller is not in default in any 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.
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.
4.17. Disclaimer of Warranties; Limitations of Warranties.
EXCEPT WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES SPECIFICALLY SET
FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER
OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR QUALITY
AS TO THE PURCHASED ASSETS, OR ANY PART THEREOF, OR AS TO THE CONDITION OR
WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR
PATENT.
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4.18. Registration Statement and Information Statement.
None of the information to be supplied by Seller for inclusion or
incorporation by reference in the Registration Statement or the information
statement included therein (together with any amendments or supplements thereto,
and including all information incorporated by reference therein, the
"Information Statement") will (a) in the case of the Registration Statement, at
the time it becomes effective, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading or (b) in the case of the
Information Statement, at the time of the mailing of the Information Statement
and at the Closing Date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading. If at any time prior to the Closing Date any event
with respect to Seller, its officers and directors or any of its subsidiaries
shall occur that is required to be described in the Information Statement or the
Registration Statement, such event shall be so described, and an appropriate
amendment or supplement shall be promptly filed with the SEC and, as required by
law, disseminated to Seller's stockholders. The Registration Statement will
comply (with respect to Seller) as to form in all material respects with the
provisions of the Securities Act, and the Information Statement will comply
(with respect to Seller) as to form in all material respects with the provisions
of the Exchange Act.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
5.1. Organization and Good Standing.
Entravision License Sub is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of California.
Entravision is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
5.2. Due Authorization.
Subject to the FCC Order, Purchaser has full power and authority to enter
into this Agreement, the Deposit Escrow Agreement and the Time Brokerage
Agreement and to carry out Purchaser's obligations hereunder and thereunder. The
execution and delivery of this Agreement, the Deposit Escrow Agreement and the
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Time Brokerage Agreement by Purchaser and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action, if any, on the part of Purchaser and Entravision License Sub. This
Agreement, the Deposit Escrow 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 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, the
Deposit Escrow 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 or
the organizational documents of Entravision License Sub; (b) subject to the FCC
Order and compliance with the HSR Act, 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 indenture, mortgage, lease, contract or other instrument to which
Purchaser or Entravision License Sub is a party or by which Purchaser or
Entravision License Sub is bound or affected.
5.4. Consents.
No consent, approval, authorization, license, exemption of, filing or
registration with any court or Governmental Authority is required in connection
with the execution and delivery of this Agreement, the Deposit Escrow Agreement
or the Time Brokerage Agreement by Purchaser or the consummation by Purchaser or
Entravision License Sub of any transaction contemplated hereby or thereby, other
than the consent of the FCC and those required under the HSR Act. No approval,
authorization or consent of any other Person is required in connection with the
execution and delivery by Purchaser of this Agreement, the Deposit Escrow
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.
Except for UBS Warburg (the fees and expenses of which shall be borne
solely by Purchaser), 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.
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5.6. Qualification.
5.6.1. Entravision License Sub 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 Entravision
License Sub under the Communications Act 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 of the transaction, or (c) to cause the FCC not
to consent to the assignment of the FCC Licenses to Entravision License Sub.
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 or the consummation and performance of the Time
Brokerage Agreement. Except as set forth on Schedule 5.6.2, neither Purchaser
nor any Affiliate of Purchaser owns or possesses, and has not entered into any
agreement (other than this Agreement) to acquire, any media interests (including
the right to program any broadcast stations) in any of the markets in which the
Stations operate.
5.7. Financial Ability.
Purchaser on the Closing Date will have cash and Class A Common Stock
available that is sufficient to enable Purchaser to consummate the transactions
contemplated by this Agreement.
5.8. Issuance of the Shares.
The Shares, when issued, sold and delivered to Seller at Closing, will
be (a) duly and validly issued, fully paid and nonassessable and not subject to
preemptive or similar rights, (b) free and clear of all Liens, (c) duly
registered under the Securities Act under a Registration Statement on Form S-4
(as the same may be amended, the "Registration Statement"), (d) freely and
immediately transferable and distributable, in whole or in part, at any time by
Seller, (e) free of all restrictions on transfer under applicable federal and
state securities Laws or otherwise, and (f) issued in compliance with all
applicable federal and state securities Laws. The Shares will be listed on the
New York Stock Exchange, subject only to official notice of issuance. No
approval of the stockholders of Purchaser is
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required to issue the Shares to Seller pursuant to this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, Purchaser
makes no representation or warranty whatsoever as to fluctuations in the market
price of Purchaser's securities, including the Shares.
5.9. Registration Statement and Information Statement.
None of the information to be supplied by Purchaser for inclusion or
incorporation by reference in the Registration Statement or the Information
Statement will (a) in the case of the Registration Statement, at the time it
becomes effective, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading or (b) in the case of the Information
Statement, at the time of the mailing of the Information Statement and at the
Closing Date, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading. If at any time prior to the Closing Date any event with respect
to Purchaser, its officers and directors or any of its subsidiaries shall occur
that is required to be described in the Information Statement or the
Registration Statement, such event shall be so described, and an appropriate
amendment or supplement shall be promptly filed with the SEC and, as required by
law, disseminated to Seller's stockholders. The Registration Statement will
comply (with respect to Purchaser) as to form in all material respects with the
provisions of the Securities Act, and the Information Statement will comply
(with respect to Purchaser) as to form in all material respects with the
provisions of the Exchange Act.
5.10. SEC Reports.
Purchaser has heretofore filed with the SEC all forms, statements,
reports and documents (together with all exhibits, amendments and supplements
thereto) required to be filed by Purchaser under each of the Securities Act and
the Exchange Act and the SEC rules and regulations thereunder, including an
Annual Report on Form 10-K for the year ended December 31, 2001.
ARTICLE 6.
CERTAIN COVENANTS AND AGREEMENTS
6.1. Regulatory Approvals.
6.1.1. As promptly as practicable and no later than five (5) Business
Days following the execution of this Agreement, Seller and Purchaser shall
complete any filing that may be required pursuant to the HSR Act (each an "HSR
Filing"), or
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shall mutually agree that no such filing is required. Seller and Purchaser shall
diligently take, or fully cooperate in the taking of, all necessary and proper
steps, and provide any additional information reasonably requested in order to
comply with, the requirements of the HSR Act. Each party shall pay its own
expenses in connection with the HSR Filings and any other similar filings
required in any other jurisdiction, and shall share equally any filing fees
associated with the HSR Filings.
6.1.2. No later than one (1) Business Day 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 Entravision License Sub, 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.
6.1.3. Upon the terms and subject to the conditions set forth in this
Agreement, Seller and Purchaser shall each use their respective reasonable best
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 necessary, 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 Entravision License Sub; (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 the Registration
Statement and filings in connection with the HSR Act and the FCC Application,
and to supply promptly any additional information and documentary material that
may be requested in connection with 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 Entravision License Sub;
and (e) execute and deliver any additional instruments necessary to assign the
FCC Licenses from BCR License Sub to Entravision License Sub or to consummate
any other transactions contemplated by
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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 Entravision
License Sub 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. Without limiting this Section 6.1.3, Purchaser agrees to take any
and all reasonable steps and to make any and all reasonable undertakings to (i)
avoid or eliminate each and every impediment under any antitrust, merger
control, competition, or trade regulation Law, including the Communications Act,
that may be asserted by any Governmental Authority with respect to consummation
of the transactions contemplated by this Agreement and (ii) resolve any
objection that may be asserted by the FCC or any other Person in order to obtain
promptly the FCC Order or satisfy or comply with any conditions imposed by the
FCC Order, in all events so as to enable the Closing to occur as soon as
reasonably possible. Notwithstanding the foregoing, the parties agree that
neither party shall be obligated, in complying with this Section 6.1.3, to take
any actions to cause any third party to take any actions, in regard to any
Governmental Authority. It is understood and agreed that third parties that may
have interests in Seller or Purchaser, including the interest of Univision
Communications Inc. in Purchaser, are beyond the control of Seller or Purchaser
(except to the extent of any agreements between Purchaser, Seller and any such
third party, as applicable), and cannot be required to take or cooperate in
actions that would result in obtaining necessary Governmental Authority action
with respect to the consummation of the transactions contemplated by this
Agreement. In no event shall either party be responsible for adverse actions of
a Governmental Authority, with respect to the consummation of the transactions
contemplated by this Agreement, resulting from the actions or lack of
cooperation of any third parties.
6.1.4. Notwithstanding anything in this Agreement to the contrary, if
the Closing occurs before the FCC Order becomes a Final Order, the terms of
Section 6.1.3 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. Seller will use its reasonable best efforts to obtain all Third
Party Consents and customary estoppel certificates as promptly as practicable
after the date of this Agreement. 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.
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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 reasonable best 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, 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
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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, including all engineering
reports relating to the upgrade of KLYY-FM described in Schedule 2.1.1 hereto
(the "KLYY Upgrade"); 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 4, 2002
(the "Confidentiality Agreement") between Seller and Purchaser are hereby
incorporated herein by reference and shall continue in full force and effect
until the 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, in the reasonable
opinion of counsel, be advisable or 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 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.
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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 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 up to the Outside Date to accomplish
such restoration, repair or replacement. If such restoration, repair or
replacement does not exceed One Hundred Thousand Dollars ($100,000) and is not
accomplished prior to the Closing Date, as the same may be extended as provided
herein, the parties shall consummate the Closing and Purchaser shall receive all
insurance proceeds paid or payable to Seller and Purchaser shall thereafter
complete such restoration, repair or replacement at its sole expense; provided,
however, Seller shall have no further liabilities with respect to such damage or
destruction after payment to Purchaser of such insurance proceeds. If such
restoration, repair or replacement exceed One Hundred Thousand Dollars
($100,000) and is not accomplished prior to the Outside Date, Purchaser may
terminate this Agreement in Purchaser's sole and absolute discretion.
6.9. Collection of Receivables.
Within three (3) Business Days after the effective date of the Time
Brokerage Agreement (the "TBA Date"), Seller shall deliver to Purchaser a
complete and detailed list of all the Stations' accounts receivable arising from
the broadcast of advertising time on the Stations' prior to the TBA Date
("Seller's AR"). For a period of one hundred eighty (180) days following the TBA
Date (the "Collection Period"), Purchaser will promptly forward to the address
for Seller set forth in Section 11.6 below, any amounts received by Purchaser at
the Stations or otherwise representing any Seller's AR. Purchaser shall not be
required to institute any legal proceedings to enforce the collection of
Seller's AR or to refer
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any of Seller's AR to a collection agency. 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. Purchaser shall have no right to set-off any
amounts collected for Accounts Receivable for any amounts owed to Purchaser by
Seller. Purchaser shall incur no liability to Seller for any uncollected
account.
6.10. Time Brokerage Agreement.
Within one (1) Business Day of the earlier of expiration or termination
of any waiting periods (and any extensions thereof) under the HSR Act, Seller
and Purchaser shall enter into a time brokerage agreement in substantially the
form attached hereto as Exhibit B (the "Time Brokerage Agreement"). The Time
Brokerage Agreement 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
directly 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. Filings; Other Actions.
6.11.1. Seller shall, as soon as practicable after the date hereof,
prepare and file with the SEC the Information Statement and Purchaser shall
prepare and file with the SEC the Registration Statement (including the
prospectus of Purchaser), in which the Information Statement will be included.
Purchaser and BCR shall share equally any filing fees associated with the filing
of the Registration Statement. The Registration Statement shall include a plan
of distribution providing for both the distribution of the Shares from BCR to
BCR's stockholders ("Stockholder Distribution"), and the sale of the Shares into
the public market by BCR and any Person deemed to be an "underwriter" within the
meaning of Rule 145(c) under the Securities Act with respect to the Shares
(collectively, the "Selling Stockholders") (any such sale, a "Public Sale").
Each of Purchaser and Seller shall use all reasonable efforts to have the
Registration Statement declared effective under the Securities Act as promptly
as practicable after such filing. As promptly as practicable after the
Registration Statement shall have become effective, BCR shall mail the
Information Statement to BCR's stockholders. Purchaser shall also take any
action (other than qualifying to do business in any jurisdiction in which it
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is currently not so qualified) required to be taken under any applicable state
securities laws in connection with the issuance of the Shares, and Seller shall
furnish all information concerning Seller and BCR's stockholders as may
reasonably be requested in connection with any such action.
6.11.2. If at any time after the Closing, BCR shall desire to effect
either a Stockholder Distribution or BCR or the Selling Stockholders shall
desire to effect a Public Sale, and BCR or the Selling Stockholders, as the case
may be, are not able to do so pursuant to the Registration Statement because the
information contained in the Registration Statement shall no longer be current
or for any other reason, then Purchaser shall use reasonable best efforts to
reasonably promptly amend the Registration Statement pursuant to which BCR may
effect such Stockholder Distribution or BCR and the Selling Stockholders may
effect such Public Sale, as applicable. With respect to the information to be
included in any such amendment, Seller shall be deemed to have made, as of the
date of such amendment, the representations and warranties set forth in Section
4.18 with respect to the information supplied by Seller, and Purchaser shall be
deemed to have made, as of the date of such amendment, the representations and
warranties set forth in Section 5.9 with respect to the information supplied by
Purchaser. Purchaser shall use reasonable best efforts to maintain the
effectiveness of such Registration Statement, as so amended, until such time as
BCR shall have completed such Stockholder Distribution or BCR and the Selling
Stockholders shall have completed such Public Sale, provided that Purchaser
shall have no obligation hereunder to maintain the effectiveness of the
Registration Statement beyond the date which is the fifteen (15) month
anniversary of the Closing Date. Notwithstanding anything contained in this
Section 6.11.2 to the contrary, BCR acknowledges that, from time to time, there
may be circumstances under which Purchaser may notify BCR that BCR and the
Selling Stockholders may be required to suspend temporarily the use of the
Registration Statement, and any prospectus forming a part thereof, to effect
transactions as part of a Stockholder Distribution or Public Sale, and BCR
covenants and agrees (for itself and on behalf of the Selling Stockholders) to
cooperate fully with all such requests and notices from Purchaser; provided,
that Purchaser shall not have the right to require any such suspension for more
than a total of five (5) Business Days on any occasion or on more than a total
of two (2) occasions during the fifteen (15) month period referred to above, for
a maximum aggregate period of suspension during such fifteen (15) month period
of not in excess of ten (10) Business Days.
6.11.3. Each party hereto agrees, subject to applicable laws relating to
the exchange of information, promptly to furnish the other parties hereto with
copies of written communications (and memoranda setting forth the substance of
all oral communications) received by such party, or any of its subsidiaries,
affiliates or associates (as such terms are defined in Rule 12b-2 under the
Exchange Act as in
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effect on the date hereof), from, or delivered by any of the foregoing to, any
Governmental Authority in respect of the transactions contemplated hereby.
6.11.4. Prior to the Closing Date, Purchaser shall cause the Shares to be
approved for listing on the New York Stock Exchange, subject to official notice
of issuance.
6.12. Employees.
As of the Closing Date, Purchaser may, at Purchaser's option, offer
employment to any employee of Seller who works primarily at or for the Stations
on such terms and conditions as may be mutually agreed upon by Purchaser and
such employee. Notwithstanding any possible inferences to the contrary, neither
Seller nor Purchaser intends for this Section 6.12 to create any rights or
obligations except as between Seller and Purchaser, and no past, present or
future employees of Seller or Purchaser will be treated as third-party
beneficiaries of this Section 6.12.
6.13. KLYY Upgrade.
Prior to the Closing, Seller shall consult with Purchaser and obtain
Purchaser's consent (which consent shall not be unreasonably withheld, delayed
or conditioned) prior to making any material changes to facilities in connection
with the KLYY Upgrade.
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:
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 the covenants and agreements contained in
this Agreement that are to be performed by Seller at or prior to the Closing,
except in all
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cases where the failure to perform such covenants and agreements would not have
a Material Adverse Effect.
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. HSR Act.
Any waiting period (and any extension thereof) under the HSR Act applicable
to the purchase of the Purchased Assets contemplated hereby shall have expired
or shall have been terminated.
7.5. 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.
7.6. Third Party Consents.
The Third Party Consents set forth on Schedule 7.6 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 7.6.
7.7. Closing Deliveries.
Purchaser shall have received each of the documents or items required to be
delivered to it pursuant to Section 9.1 hereof.
7.8. Registration Statement.
The Registration Statement shall have become effective in accordance with
the provisions of the Securities Act. No stop order suspending the effectiveness
of the Registration Statement shall have been issued by the SEC and no
proceedings for that purpose shall have been initiated or, to the knowledge of
Purchaser or Seller, threatened by the SEC. All necessary state securities or
blue sky authorizations shall have been received.
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7.9. Information Statement.
At least twenty (20) calendar days shall have elapsed from the mailing of
the Information Statement to the stockholders of Seller.
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
(except for the representations and warranties set forth in Section 5.8) shall
be true and correct in all material respects as of the Closing Date with the
same effect as though made at such time (except as contemplated or permitted by
this Agreement); and the representations and warranties of Purchaser set forth
in Section 5.8 shall be true and correct in all respects as of the Closing Date.
8.2. Covenants.
Purchaser shall have performed in all material respects the covenants and
agreements contained in this Agreement that are to be performed by Purchaser as
of the Closing.
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. HSR Act.
Any waiting period (and any extension thereof) under the HSR Act applicable
to the purchase of the Purchased Assets contemplated hereby shall have expired
or shall have been terminated.
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8.5. 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.
8.6. Closing Deliveries.
Seller shall have received each of the documents or items required to be
delivered to it pursuant to Section 9.2.
8.7 Listing of Shares.
The Shares shall be listed on the New York Stock Exchange, subject only to
official notice of issuance.
8.8. Registration Statement.
The Registration Statement shall have become effective in accordance with
the provisions of the Securities Act. No stop order suspending the effectiveness
of the Registration Statement shall have been issued by the SEC and no
proceedings for that purpose shall have been initiated or, to the knowledge of
Purchaser or Seller, threatened by the SEC. All necessary state securities or
blue sky authorizations shall have been received.
8.9. Information Statement.
At least twenty (20) calendar days shall have elapsed from the mailing of
the Information Statement to the stockholders of Seller.
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 3.4
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.
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9.1.3. The Business Records.
9.1.4. Instructions to the Deposit Escrow Agent in writing and duly
executed by Seller to return the Deposit to Purchaser.
9.2. Delivery by Purchaser.
At the Closing, Purchaser shall deliver to Seller the following:
9.2.1. The Cash Payment in the amount and manner set forth in Section 3.2.
9.2.2 A stock certificate or stock certificates representing the Shares in
the amount and manner set forth in Section 3.2.
9.2.3. 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.
9.2.4. 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 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
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is diligently attempting to cure such breach); provided, however, that no such
cure period shall apply in the case of a breach by Purchaser of Purchaser's
representations and warranties set forth in Section 5.8 hereof;
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 nine (9) months after the date of this Agreement
(the "Outside Date").
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, 10.3 and 11.4 shall expressly survive the
termination of this Agreement.
10.3. Release of Deposit.
10.3.1. If this Agreement is terminated by Seller pursuant to Section
10.1.2, then within five (5) Business Days after such termination, the Deposit
(excluding all accrued interest thereon) shall be paid to Seller by wire
transfer of immediately available funds pursuant to written instructions
provided by Seller and Purchaser to the Deposit Escrow Agent. The parties
acknowledge and agree that payment of the Deposit to Seller pursuant to this
Section 10.3.1 shall not constitute liquidated damages, and Seller shall be
entitled to any and all rights and remedies available at law or in equity.
10.3.2. If this Agreement is terminated for any reason other than as set
forth in Section 10.3.1 above, then and in that event, within five (5) Business
Days after such termination, the Deposit (and all accrued interest thereon)
shall be refunded to Purchaser by wire transfer of immediately available funds
pursuant to instructions provided by Seller and Purchaser to the Deposit Escrow
Agent.
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ARTICLE 11.
MISCELLANEOUS PROVISIONS
11.1. 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.
11.2. Specific Performance.
The parties acknowledge that the Purchased Assets and the transactions
contemplated hereby are unique, that a failure by Seller or Purchaser to
complete such transactions will cause irreparable injury to the other, and that
actual damages for any such failure may be difficult to ascertain and may be
inadequate. Consequently, Seller and Purchaser agree that each shall be
entitled, in the event of a default by the other, to specific performance of any
of the provisions of this Agreement in addition to any other legal or equitable
remedies to which the non-defaulting party 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.
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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, whether levied on Purchaser or Seller, shall be borne by Purchaser.
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; provided that Purchaser shall remit any funds necessary to pay such taxes
and fees under this Section 11.5 in sufficient time to allow timely payment of
any such taxes and fees.
11.6. Notices.
All notices, demands, requests, or other communications which may be or
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:
Entravision Communications Corporation
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Entravision Communications Corporation
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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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
Xxxxxxx X. Xxxxx, Xx.
Telephone: (000) 000-0000
(000) 000-0000
Facsimile: (000) 000-0000
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.
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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, 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 Deposit Escrow Agreement and the Time Brokerage
Agreement, 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 thereof 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.
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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 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.]
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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/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: VP and CFO
BIG CITY RADIO-LA, L.L.C.
By: /s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: VP and CFO
PURCHASER
ENTRAVISION COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chairman and CEO
ANNEX I
DEFINITIONS
"Accounts Receivable" shall mean all accounts receivable with respect
to the Stations as of the end of the broadcast day immediately preceding the
Closing 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 3.5.1.
"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 2.1.7.
"Cash Payment" shall have the meaning set forth in Section 3.2.2.
"Closing" shall have the meaning set forth in Section 3.3.
"Closing Date" shall have the meaning set forth in Section 3.3.
"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.
"Deposit" shall have the meaning set forth in Section 3.1.
"Deposit Escrow Agent" shall have the meaning set forth in Section 3.1.
"Deposit Escrow Agreement" shall have the meaning set forth in Section
3.1.
"Entravision License Sub" shall mean Entravision Holdings, LLC, a
California limited liability company and a wholly-owned subsidiary of Purchaser.
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"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 6.1.2.
"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 consent, without any
condition materially adverse to Purchaser or Seller, to the assignment of the
FCC Licenses from Seller to Purchaser.
Annex I-2
"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.
"Hazardous Materials" shall mean any wastes, substances, or materials
(whether solids, liquids or gases) that are deemed hazardous, toxic, pollutants,
or contaminants, including without limitation, substances defined as "hazardous
wastes", "hazardous substances", "toxic substances", "radioactive materials" or
other similar designations in, or otherwise subject to regulation under, any
Environmental Laws.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act
of 1976, as amended, and the rules and regulations thereunder.
"HSR Filing" shall have the meaning set forth in Section 6.1.1.
"Information Statement" shall have the meaning set forth in Section
4.18.
"KLYY Upgrade" shall have the meaning set forth in Section 6.3.
"Law" shall mean any statute, law, ordinance, rule or regulation.
"Leased Transmitter Sites" shall have the meaning set forth in Section
2.1.2.
"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, known or unknown, 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, any liens, easements,
security interests, claims, pledges, licenses, equities, options, conditional
sales contracts, assessments, levies, charges, rights of others or restrictions
(whether on voting,
Annex I-3
sale, transfer, disposition or otherwise) or encumbrances of any nature
whatsoever, whether imposed by agreement, understanding, law or equity.
"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, (c) new
governmental Laws, (d) the failure to achieve any financial or operational
targets, projections or milestones set forth in any Seller business plan or
budget, or (e) 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.
"Outside Date" shall have the meaning set forth in Section 10.1.4.
"Permitted Liens" shall mean (a) Liens for taxes not yet accrued; (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 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; (f) Liens
on the Leased Transmitter Sites and the Studio Sites that do not materially
affect the current use and enjoyment thereof in the operation of the Stations or
the value of such Leased Transmitter Sites and Studio Sites; (g) customary
utility and similar easements affecting property; and (h) Liens for which a
proration adjustment is made pursuant to Section 3.6 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.
"Public Sale" shall have the meaning set forth in Section 6.11.1.
"Purchased Assets" shall have the meaning set forth in Section 2.1.
"Purchase Price" shall have the meaning set forth in Section 3.2.
"Purchaser" shall have the meaning set forth in the Preamble.
Annex I-4
"Registration Statement" shall have the meaning set forth in Section
5.8.
"SEC" shall mean the Securities and Exchange Commission and any other
similar or successor agency of the federal government then administering the
Securities Act or the Exchange Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Seller" shall have the meaning set forth in the Preamble.
"Seller's AR" shall have the meaning set forth in Section 6.9.
"Selling Stockholders" shall have the meaning set forth in Section
6.11.1.
"Shares" shall have the meaning set forth in Section 3.2.2.
"Stations" shall have the meaning set forth in the Recitals.
"Stockholder Distribution" shall have the meaning set forth in Section
6.11.1.
"Studio Sites" shall have the meaning set forth in Section 2.1.4.
"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 Section
6.10.
Annex I-5
SCHEDULES
Schedule 2.1.1 FCC Licenses
Schedule 2.1.2 Leased Transmitter Sites
Schedule 2.1.4 Studio Sites
Schedule 2.3 Assumed Contracts
Schedule 4.3 Consents and Approvals
Schedule 4.7 Tangible Personal Property
Schedule 4.8 Pending FCC Matters
Schedule 4.12 Litigation
Schedule 4.15 Third Party Consents
Schedule 5.6.2 Purchaser's Media Interests
Schedule 7.6 Required Third Party Consents For Closing
EXHIBITS
Exhibit A FCC Application
Exhibit B Time Brokerage Agreement
