Exhibit 2.4
ASSET PURCHASE AGREEMENT
BY AND AMONG
BIG CITY RADIO, INC.,
BIG CITY RADIO-CHI, L.L.C.
as Seller,
and
HBC Illinois, Inc.
as Purchaser
Dated as of January 2, 2003
TABLE OF CONTENTS
Page
----
ARTICLE 1. DEFINITIONS AND REFERENCES...................................... 2
ARTICLE 2. PURCHASE AND SALE............................................... 2
2.1. Purchase and Sale of Assets........................................ 2
2.1.1. FCC Licenses............................................... 2
2.1.2. Leased Transmitter Site.................................... 2
2.1.3. Transmitter Equipment...................................... 2
2.1.4. Studio Equipment........................................... 3
2.1.5. Certain Intangible Property................................ 3
2.1.6. Business Records........................................... 3
2.1.7. Assumed Contract........................................... 3
2.1.8. Certain Promotional Materials.............................. 3
2.2. Excluded Assets.................................................... 3
2.2.1. Cash...................................................... 4
2.2.2. Accounts Receivables...................................... 4
2.2.3. Deposits and Prepaid Expenses............................. 4
2.2.4 Intellectual Property..................................... 4
2.2.5. Certain Books and Records................................. 4
2.2.6. Securities................................................ 4
2.2.7. Insurance................................................. 4
2.2.8. Excluded Studio Site...................................... 4
2.2.9. Additional Excluded Site.................................. 4
2.2.10. Xxxxxx Station Assets..................................... 5
2.2.11. Other Agreements. ........................................ 5
2.2.12. Pre-Closing Claims........................................ 5
2.2.13. Rights Under this Agreement............................... 5
2.2.14. Employee Benefit Plans.................................... 5
2.2.15. Other Excluded Assets..................................... 5
2.3. Assumed Contract................................................... 5
ARTICLE 3. PURCHASE PRICE; CLOSING......................................... 6
3.1. Purchase Price..................................................... 6
3.2. Time of Closing.................................................... 6
3.3. Closing Procedures................................................. 6
3.4. Allocation of Purchase Price....................................... 6
3.5. Prorations......................................................... 7
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SELLER........................ 7
4.1. Organization; Good Standing........................................ 8
4.2. Due Authorization.................................................. 8
4.3. Execution and Delivery............................................. 8
4.4. Governmental Approvals............................................. 8
-1-
4.5. Title to Personal Property......................................... 9
4.6. Transmitter........................................................ 9
4.7. Tangible Personal Property......................................... 9
4.8. FCC Licenses....................................................... 9
4.9. Reports............................................................ 10
4.10. Taxes.............................................................. 10
4.11. Environmental Matters.............................................. 10
4.12. Litigation......................................................... 11
4.13. Contracts and Agreements........................................... 12
4.14. Business Records and Other Intangible Property..................... 12
4.15. Third Party Consents............................................... 12
4.16. Finders and Brokers................................................ 12
4.17. Disclaimer of Warranties; Limitations of Warranties................ 12
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PURCHASER..................... 12
5.1. Organization and Good Standing..................................... 13
5.2. Due Authorization.................................................. 13
5.3. Execution and Delivery............................................. 13
5.4. Consents........................................................... 13
5.5. Finders and Brokers................................................ 14
5.6. Designated Licensee................................................ 14
5.7. Financial Ability.................................................. 15
5.8. HSR Matters........................................................ 15
ARTICLE 6. CERTAIN COVENANTS AND AGREEMENTS................................ 15
6.1. Regulatory Approvals............................................... 15
6.2. Third Party Consents and Notices................................... 17
6.3. Access to Information.............................................. 18
6.4. Confidentiality.................................................... 18
6.5. Public Announcements............................................... 18
6.6. Ordinary Course of Business........................................ 19
6.7. Control of the Station............................................. 19
6.8. Risk of Loss....................................................... 19
ARTICLE 7. CONDITIONS TO PURCHASER'S CLOSING............................... 20
7.1. Representations and Warranties..................................... 20
7.2. Covenants.......................................................... 20
7.3. FCC Order.......................................................... 20
7.4. No Orders.......................................................... 21
7.5. Third Party Consents............................................... 21
7.6. Closing Deliveries................................................. 21
ARTICLE 8. CONDITIONS TO SELLER'S CLOSING.................................. 21
8.1. Representations and Warranties..................................... 21
8.2. Covenants.......................................................... 21
8.3. FCC Order.......................................................... 21
8.4. No Orders.......................................................... 22
8.5. Closing Deliveries................................................. 22
-2-
ARTICLE 9. DOCUMENTS TO BE DELIVERED AT CLOSING............................ 22
9.1. Delivery by Seller................................................. 22
9.2. Delivery by Purchaser.............................................. 22
ARTICLE 10. TERMINATION.................................................... 23
10.1. Termination........................................................ 23
10.2. Effect of Termination.............................................. 23
ARTICLE 11. MISCELLANEOUS PROVISIONS....................................... 24
11.1. Survival........................................................... 24
11.2. Specific Performance............................................... 24
11.3. Additional Actions, Documents and Information...................... 24
11.4. Fees and Expenses.................................................. 24
11.5. Transfer Taxes..................................................... 25
11.6. Notices............................................................ 25
11.7. Waiver............................................................. 26
11.8. Benefit and Assignment............................................. 27
11.9. Entire Agreement; Amendment........................................ 27
11.10. Severability....................................................... 27
11.11. Headings........................................................... 27
11.12. Governing Law; Jurisdiction........................................ 28
11.13. Signature in Counterparts.......................................... 28
-3-
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of the 2nd day
of January, 2003, by and among Big City Radio, Inc., a Delaware corporation
("BCR"), BIG CITY RADIO-CHI, L.L.C., a Delaware limited liability company ("BCR
License Sub"; BCR, together with BCR License Sub, "Seller") and HBC Illinois,
Inc., a Delaware corporation ("Purchaser").
WHEREAS, Seller is the licensee of radio broadcast station WXXY-FM,
licensed to Highland Park, Illinois and authorized by the FCC to operate at
103.1 MHz (FCC Facility ID No. 74177) (the "Station");
WHEREAS, Seller owns the assets which are used in the operation of the
Station;
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 Station as described herein under the terms and conditions
herein set forth;
WHEREAS, Hispanic Broadcasting Corporation ("HBC"), of which Purchaser is a
subsidiary, Univision Communications Inc. ("Univision") and Univision
Acquisition Corporation ("Merger Sub") entered into that certain Agreement and
Plan of Reorganization dated as of June 11, 2002, pursuant to which Merger Sub
will merge with and into HBC (the "Merger") and HBC will become a wholly-owned
subsidiary of Univision;
WHEREAS, on November 4, 2002, Seller publicly announced that Seller
intended to market and conduct an auction of all of Seller's radio stations in
order to satisfy certain financial obligations of Seller; and
WHEREAS, in order to ensure an orderly, timely and efficient consummation
of the transactions contemplated herein, in light of the pending Merger and
Seller's auction process, Purchaser has designated Designated Licensee as the
assignee of the FCC Licenses and certain other assets of the Station.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND REFERENCES
Capitalized terms used herein without definition shall have the
respective meanings assigned thereto in Annex I attached hereto and incorporated
herein for all purposes of this Agreement (such definitions to be equally
applicable to both the singular and plural forms of the terms defined). Unless
otherwise specified, all references herein to "Articles" or "Sections" are to
Articles or Sections of this Agreement. The word "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
ARTICLE 2.
PURCHASE AND SALE
2.1. Purchase and Sale of Assets.
Subject to the conditions set forth in this Agreement, at the Closing,
Seller shall assign, transfer, convey and deliver to Purchaser (or, as
designated by Purchaser, to Designated Licensee), and Purchaser shall purchase
and accept from Seller, all right, title and interest of Seller in and to the
following assets relating to the Station (the "Purchased Assets"), free and
clear of all Liens (other than Permitted Liens):
2.1.1. FCC Licenses.
All licenses, construction permits or authorizations issued by
or pending before the FCC for use in the operation of the Station 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 Site.
The leasehold interests of Seller at the Station's transmitter
site located in Arlington Heights, Illinois, as described on Schedule 2.1.2
hereto (the "Leased Transmitter Site").
2.1.3. Transmitter Equipment.
The equipment and other tangible personal property owned by
Seller and located, or otherwise held for use, at the Leased Transmitter Site
that are set forth on Schedule 4.7 hereto, together with replacements thereof
and additions thereto made between the date hereof and the Closing.
-2-
2.1.4. 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 Station that
are set forth on Schedule 4.7 hereto, together with replacements thereof and
additions thereto made between the date hereof and the Closing.
2.1.5. Certain Intangible Property.
The call letters, Xxxxx frequencies, trade names (listed on
Schedule 2.1.5 hereto) and internet domain names of the Station.
2.1.6. 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 Station, technical
data, political advertising records and all other records, correspondence with
and documents pertaining to governmental authorities and similar third parties
(the "Business Records").
2.1.7. Assumed Contract.
The lease for the Leased Transmitter Site listed on Schedule
2.1.7 hereto (the "Assumed Contract").
2.1.8. Certain Promotional Materials.
All promotional materials that incorporate the trade name
"Viva" that are located at the Station as of the Closing Date. Purchaser may
designate that Seller convey and transfer at the Closing to Designated Licensee
the FCC Licenses and certain of the other Purchased Assets; provided, however,
that Seller shall in no case be deemed to have made any representations or
warranties to Designated Licensee with respect to any of the Purchased Assets so
conveyed and transferred; provided, further, however, that no such conveyance or
transfer to the Designated Licensee shall cause any delay of the Closing.
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
-3-
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 Station 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 Station.
2.2.4 Intellectual Property.
Except as specifically set forth in Section 2.1 above, all
intellectual property of Seller related to the operation of the Station,
including promotional materials, tapes, record libraries and similar items of
intellectual property.
2.2.5. Certain Books and Records.
Seller's corporate seal, minute books, charter documents,
corporate stock record books and other books and records that pertain to the
organization of Seller.
2.2.6. Securities.
All securities of any kind owned by Seller.
2.2.7. Insurance.
All insurance contracts or proceeds thereof.
2.2.8. Excluded Studio Site.
The leasehold interest of Seller in the studio site located at
Michigan Avenue, Chicago, Illinois (the "Excluded Studio Site").
2.2.9. Additional Excluded Site.
The leasehold interest of Seller in the premises located at
000
-0-
Xxxxxx Xxxxxx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxx (the "Additional Excluded Site"),
and all broadcast towers, antennas, transmitters, generators, STLs and other
tangible personal property located, or otherwise intended for use, at the
Additional Excluded Site.
2.2.10. Xxxxxx Station Assets.
Seller's assets used primarily in connection with the
operation of the Xxxxxx Station.
2.2.11. Other Agreements.
Any agreements other than the Assumed Contract.
2.2.12. 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.
2.2.13. 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.
2.2.14. 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.
2.2.15. Other Excluded Assets.
Any other assets of Seller not specifically identified in
Section 2.1 of this Agreement.
2.3. Assumed Contract.
At the Closing, Purchaser shall assume the obligations of Seller for
periods on and after the Closing Date under the Assumed Contract, and Purchaser
agrees to pay and perform the Assumed Contract from and after the Closing Date.
Except as specifically set forth in the preceding sentence, Purchaser does not
assume and shall in no event be liable for any Liability of the Station or
Seller.
-5-
ARTICLE 3.
PURCHASE PRICE; CLOSING
3.1. Purchase Price.
The purchase price for the Purchased Assets shall be Thirty-Two
Million Eight Hundred Seventy-Five Thousand Dollars ($32,875,000) (the "Purchase
Price"). Purchaser shall pay the Purchase Price in cash to Seller at Closing by
wire transfer of immediately available funds to an account or accounts
identified by Seller in writing prior to Closing.
3.2. Time of Closing.
The closing for the sale and purchase of the Purchased Assets (the
"Closing") shall be held at the offices of 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 of the
conditions precedent set forth in Article 7 and Article 8 of this Agreement, the
Closing shall occur on such date (the "Closing Date") that is the fifth (5th)
Business Day after the date on which the FCC Order shall have been granted. The
Closing shall be deemed to be effective as of 12:01 a.m. on the Closing Date.
3.3. 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 Purchase Price to Seller in accordance with Section 3.1 above and (b)
execute and deliver an assumption agreement with respect to the Assumed Contract
in a form reasonably acceptable to both Seller and Purchaser. Each party will
cause to be prepared, executed and delivered all other documents required to be
delivered by such party pursuant to this Agreement and all other appropriate and
customary documents as another party or its counsel may reasonably request for
the purpose of consummating the transactions contemplated by this Agreement. All
actions taken at the Closing shall be deemed to have been taken simultaneously
at the time the last of any such actions is taken or completed.
3.4. Allocation of Purchase Price.
3.4.1. The Purchase Price shall be allocated among the Purchased
Assets in a manner as mutually agreed to in writing between the parties, based
upon an appraisal of the Purchased Assets by Bond & Xxxxxx (the fees of which
firm shall be paid by Purchaser).
-6-
3.4.2. Seller and Purchaser agree, pursuant to Section 1060 of the
Code, that the Purchase Price shall be allocated in accordance with this Section
3.4, and that all Tax returns and reports shall be filed consistent with such
allocation. Notwithstanding any other provision of this Agreement, the
provisions of this Section 3.4 shall survive the Closing Date without
limitation.
3.5. Prorations.
3.5.1. All items of income and expense arising from the operation of
the Station with respect to the Purchased Assets and the Assumed Contract 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.
3.5.2. 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 Station payable with respect to the year
in which the Closing Date falls shall each be prorated as between Seller and
Purchaser on the basis of the number of days of the Tax year elapsed to and
including the Closing Date.
3.5.3. Prepaid items, deposits, credits and accruals such as water,
electricity, telephone, other utility and service charges, lease expenses,
license fees (if any) and payments under any contracts or utility services to be
assumed by Purchaser shall be prorated between Seller and Purchaser on the basis
of the period of time to which such liabilities, prepaid items and accruals
apply.
3.5.4. All prorations shall be made and paid insofar as feasible on
the Closing Date; any prorations not made on such date shall be made as soon as
practicable (not to exceed ninety (90) days) thereafter. Seller and Purchaser
agree to assume, pay and perform all costs, liabilities and expenses allocated
to each of them pursuant to this Section 3.5.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
-7-
4.1. Organization; Good Standing.
BCR License Sub is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Delaware.
BCR is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. Seller has all requisite corporate power and
authority to own and lease Seller's properties and carry on Seller's business as
currently conducted.
4.2. Due Authorization.
Subject to the FCC Order and any requisite approval of BCR
stockholders, Seller has full power and authority to enter into and perform this
Agreement and to carry out the transactions contemplated hereby. Subject to
obtaining any requisite approval of BCR stockholders, Seller has taken all
necessary corporate action to approve the execution and delivery of this
Agreement and the transactions contemplated hereby. This Agreement constitutes
the legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms, except as may be limited by the availability of
equitable remedies or by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally.
4.3. Execution and Delivery.
Except as set forth on Schedule 4.3 hereto, neither the execution and
delivery by Seller of this Agreement nor the consummation by Seller of the
transactions contemplated hereby will: (a) conflict with or result in a breach
of any provisions of Seller's organizational documents, (b) subject to the FCC
Order, violate any Law or Order of any court or Governmental Authority, 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 Seller or
Seller's assets may be bound or affected.
4.4. Governmental Approvals.
No approval, authorization, consent, order or other action of, or
filing with, any court or Governmental Authority is required in connection with
the execution and delivery by Seller of this Agreement or the consummation of
the transactions contemplated hereby, other than those of the FCC.
-8-
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 Contract.
4.6. Transmitter.
4.6.1. Seller has a valid, binding and enforceable leasehold
interest, which is free and clear of all Liens except for Permitted Liens, in
and to the Leased Transmitter Site.
4.6.2. Seller has not received any notice of, and has no knowledge
of, any material violation of any zoning, building, health, fire, water use or
similar Law in connection with the Leased Transmitter Site. To the knowledge of
Seller, no fact or condition exists which would result in the termination or
impairment of access of the Station to the Leased Transmitter Site or
discontinuation of necessary sewer, water, electrical, gas, telephone or other
utilities or services.
4.7. Tangible Personal Property.
Schedule 4.7 sets forth a list, complete and accurate in all material
respects, of the Purchased Assets which consist of tangible personal property.
All of such tangible personal property, viewed as a whole and not on an asset by
asset basis, are in good condition and working order, ordinary wear and tear
excepted, and are suitable for the uses for which intended, free from any known
defects except such minor defects that do not interfere with the continued
present use thereof by Seller.
4.8. FCC Licenses.
Schedule 2.1.1 lists and accurately describes all of the FCC Licenses
necessary for the lawful ownership and operation of the Station and the conduct
of its business, except where the failure to hold any such FCC License would not
have a Material Adverse Effect. Seller has furnished to Purchaser true and
accurate copies of all of the FCC Licenses. Each such FCC License is in full
force and effect and is valid under applicable Laws; the Station is being
operated in compliance in all material respects with the Communications Act, and
all rules, regulations and policies of the FCC; and to the knowledge of Seller,
no event has occurred which (whether with or without notice, lapse of time or
the happening or occurrence of any other event) is reasonably likely to result
in the revocation or termination of any FCC License or the imposition of any
restriction of such a nature as would have a Material Adverse Effect, except for
proceedings of a legislative or rule-making
-9-
nature intended to affect the broadcasting industry generally. The Station, each
of its 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 2.1.1 with respect to the FCC
Modification Application and the FCC Xxxxxx Modification Application, 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 thereof.
4.9. Reports.
Seller has duly filed all reports required to be filed by any Law or
Order of any court or Governmental Authority and has made payment of all charges
and other payments, if any, shown by such reports to be due and payable, 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 Station 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.
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
-10-
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 Site of Hazardous
Materials; (b) the current or past release or threatened release into the
environment from the Leased Transmitter Site (including into any storm drain,
sewer, septic system or publicly owned treatment works) of any Hazardous
Materials; (c) the off-site disposal of Hazardous Materials originating on or
from the Leased Transmitter Site; (d) any violation of Environmental Laws at any
part of the Leased Transmitter Site 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 Seller's possession or under
Seller's control that relate to the Leased Transmitter Site 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.
There is no Order of any court or Governmental Authority and no
action, suit, proceeding or investigation, judicial, administrative or otherwise
that is pending or, to Seller's knowledge, threatened against or affecting the
Station which, if adversely determined would have a Material Adverse Effect or
which challenges the validity of any of the transactions contemplated by this
Agreement.
-11-
4.13. Contracts and Agreements.
Seller is not in default in any material respect under any of the
Assumed Contract, and, as of the Closing Date, Seller will have paid all sums
and performed in all material respects all obligations under the Assumed
Contract which are required to be paid or performed prior to the Closing Date.
4.14. Business Records and Other Intangible Property.
Seller has, and after the Closing, Purchaser will have, the right to
use the Business Records, call letters, trade names and other intangible
property 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.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
-12-
5.1. Organization and Good Standing.
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all requisite
power and authority to own and lease its properties and carry on its business as
currently conducted.
5.2. Due Authorization.
Subject to the FCC Order, Purchaser has full power and authority to
enter into this Agreement and to carry out Purchaser's obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Purchaser. This Agreement has been duly executed
and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser, enforceable against it in accordance with its 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 nor
the consummation of the transactions contemplated hereby will: (a) conflict with
or result in a breach of the certificate of incorporation or bylaws of
Purchaser; (b) subject to the FCC Order, violate any Law or Order of any court
or Governmental Authority; or (c) violate or conflict with or constitute a
default under (or give rise to any right of termination, cancellation or
acceleration under) any indenture, mortgage, lease, contract or other instrument
to which Purchaser is a party or by which Purchaser 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 or the consummation by
Purchaser of any transaction contemplated hereby, other than the consent of the
FCC. No approval, authorization or consent of any other Person is required in
connection with the execution and delivery by Purchaser of this Agreement and
the consummation of the transactions contemplated hereby by Purchaser, except as
may have been previously obtained by Purchaser.
-13-
5.5. Finders and Brokers.
No person has as a result of any agreement entered into by Purchaser
any valid claim against any of the parties hereto for a brokerage commission,
finder's fee or other like payment.
5.6. Designated Licensee.
5.6.1. To the knowledge of Purchaser, Designated Licensee 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 the knowledge of
Purchaser, there are no facts or proceedings which would reasonably be expected
(a) to disqualify Designated Licensee under the Communications Act or otherwise
from holding the FCC Licenses or (b) to cause the FCC not to approve the
assignment of the FCC Licenses to Designated Licensee.
5.6.2. To the knowledge of Purchaser, none of Purchaser, any
Affiliate of Purchaser, Designated Licensee or any Affiliate of Designated
Licensee shall be required to sell, dispose of or surrender any FCC license held
by Purchaser, any Affiliate of Purchaser, Designated Licensee or any Affiliate
of Designated Licensee with respect to any broadcast properties, or any other
properties or businesses of Purchaser, any Affiliate of Purchaser, Designated
Licensee or any Affiliate of Designated Licensee, 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. For purposes of
this Section 5.6.2, neither Clear Channel Communications, Inc. nor Univision,
and their respective subsidiaries as of the date hereof, shall be deemed an
Affiliate of Purchaser.
5.6.3. To the knowledge of Purchaser:
(a) if Designated Licensee is an entity, Designated Licensee
is duly organized, validly existing and in good standing under the laws of the
state of Designated Licensee's formation or incorporation;
(b) the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of Designated
Licensee;
(c) neither the execution and delivery by Purchaser of this
Agreement nor the consummation of the transactions contemplated hereby will: (i)
if Designated Licensee is an entity, conflict with or result in a breach of the
organizational documents of Designated Licensee; or (ii) violate or conflict
with or constitute a default under (or give rise to any right of termination,
cancellation or
-14-
acceleration under) any indenture, mortgage, lease, contract or other instrument
to which Designated Licensee is a party or by which Designated Licensee is bound
or affected; and
(d) no consent, approval, authorization, license, exemption
of, filing or registration with any court or Governmental Authority is required
in connection with the consummation by Designated Licensee of any transaction
contemplated hereby, other than the consent of the FCC, and no approval,
authorization or consent of any other Person is required in connection with the
consummation of the transactions contemplated hereby by Designated Licensee.
5.7. Financial Ability.
Purchaser has, and on the Closing Date will have, cash available that
is sufficient to enable Purchaser to consummate the transactions contemplated by
this Agreement.
5.8. HSR Matters.
Purchaser, including all entities under common control with Purchaser
as "control" is defined in 16 C.F.R. section 801.1(b), (a) does not hold any
voting securities of Seller including any entity under common control with
Seller as "control" is defined in 16 C.F.R. section 801.1(b) (collectively with
the Seller the "Seller Entities") and (b) has not acquired any assets from any
of the Seller Entities in the six (6) months prior to the date hereof. Purchaser
has concluded under the requirements of 16 C.F.R. section 801.10(c)(3), that the
fair market value of the Purchased Assets is less than Fifty Million Dollars
($50,000,000).
ARTICLE 6.
CERTAIN COVENANTS AND AGREEMENTS
6.1. Regulatory Approvals.
6.1.1. 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 an
application with the FCC requesting the FCC's consent to the assignment of the
FCC Licenses from BCR License Sub to Designated Licensee, which application is
attached hereto at Exhibit A (the "FCC Assignment Application"). Each party
shall pay its own expenses in connection with the preparation and prosecution of
the FCC Assignment Application and shall share equally any filing fees
associated with the FCC Assignment Application.
-15-
6.1.2. In addition to the FCC Assignment Application, Seller agrees
to use reasonable best efforts to file the FCC Modification Application within
three (3) Business Days after receipt thereof from Purchaser. The parties agree
that the FCC Modification Application will be prosecuted with reasonable best
efforts, in good faith and with due diligence. The parties agree to use their
reasonable best efforts to file additional information or amendments requested
by the FCC orally or in writing within five (5) Business Days after such request
and, in any event, to commence preparation of such additional information or
amendments immediately upon request and to complete and file the same with the
FCC as promptly as practical. Purchaser will be responsible for the expenses
incurred by the parties in the preparation, filing and prosecution of the FCC
Modification Application, including filing fees and legal and engineering
expenses. The parties acknowledge and agree that it shall not be a condition to
Closing that the FCC shall have approved the FCC Modification 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 Designated Licensee; (c) furnish all information required for any
application or other filing to be made pursuant to any applicable Law or any
applicable regulations of any Governmental Authority in connection with the
transactions contemplated by this Agreement, including filings in connection
with the FCC Assignment 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 Designated Licensee; and (e) execute and
deliver any additional instruments necessary to assign the FCC Licenses from BCR
License Sub to Designated Licensee or to consummate any other transactions
contemplated by this Agreement. No party to this Agreement shall consent to any
voluntary delay of the assignment of the FCC Licenses from BCR
-16-
License Sub to Designated Licensee 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 steps and to make any and all undertakings necessary
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, including proposing, negotiating, committing to, and
effecting by consent decree, hold separate order, or otherwise, the sale,
divestiture, licensing or disposition of such assets of Purchaser or any of its
Affiliates (including any FCC license held by such persons) or otherwise taking
or committing to take actions that limit Purchaser's or its Affiliates' freedom
of action with respect to, or their ability to retain, any of their assets, in
each case, as may be required in order to obtain the FCC Order or avoid the
entry of, or to effect the dissolution of, any injunction, temporary restraining
order, or other Order in any suit or proceeding, which would otherwise have the
effect of preventing or delaying the Closing.
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 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 adverse to Purchaser.
6.2.2. Prior to Closing, Seller shall provide written notice to third
parties which have entered into material contracts with the Station (other than
the Assumed Contract) 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 Station in respect of the contracts with such third
parties. Seller shall promptly provide copies of these written notices to
Purchaser.
-17-
6.3. Access to Information.
From the date hereof until the Closing (upon reasonable notice to
Seller), during normal business hours, Seller shall, and shall cause its
officers, directors, employees, auditors and agents to, (a) afford the officers,
employees and authorized agents and representatives of Purchaser reasonable
access to the offices, properties, books and records of Seller to the extent
related to the Purchased Assets, and (b) furnish to the officers, employees and
authorized agents and representatives of Purchaser such additional information
regarding the Purchased Assets and the Station (including regularly prepared
financial statements of the Station) as Purchaser may from time to time
reasonably request in order to assist Purchaser in fulfilling its obligations
under this Agreement and Purchaser's reporting obligations under applicable
rules and regulations of the Securities and Exchange Commission, and to
facilitate the consummation of the transactions contemplated hereby; provided,
however, that (i) such investigation shall not unreasonably interfere with any
of the businesses or operations of Seller or the Station and (ii) it is
understood that Seller is not making any representations or warranties as to any
financial statements of the Station furnished to Purchaser.
6.4. Confidentiality.
The terms of the confidentiality agreement previously executed between
the parties (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,
conditioned or delayed; provided, however, that a party may, without the prior
written consent of the other party, issue such press release or make such public
statement as may be required by Law or any listing agreement with a national
securities exchange to which Seller or Purchaser is a party if it has used all
reasonable efforts to consult with the other
-18-
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.
During the period from the date hereof to the Closing Date, unless the
prior consent of Purchaser is first obtained, Seller shall cause the Station to
not knowingly take any action which would cause the conditions set forth in
Section 7.1 and Section 7.2 not to be satisfied as of the Closing Date.
6.7. Control of the Station.
Prior to the Closing, Purchaser shall not, directly or indirectly,
control, supervise, direct, or attempt to control, supervise, or direct, the
operations of the Station; such operations, including complete control and
supervision of the Station programs, employees, and policies, shall be the sole
responsibility of Seller until the Closing.
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 Station) 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.
6.9. Xxxxxx Station.
Within a reasonable period of time after the date hereof, Seller
agrees to file, at Purchaser's sole cost and expense, an application with the
FCC proposing to modify the directional antenna for the Xxxxxx Station at
Seller's current transmitter site in Morris, Illinois, in accordance with the
engineering specifications set forth on Schedule 6.9 hereto (the "FCC Xxxxxx
Modification Application"). The parties acknowledge and agree that it shall not
be a condition to Closing that the FCC shall have approved the FCC Xxxxxx
Modification Application. Moreover, the parties acknowledge and agree that
Seller may sell and assign its rights in the Xxxxxx Station, and that Seller's
obligations pursuant to this Section 6.9 shall apply only so
-19-
long as Seller or a subsidiary of Seller is the licensee of both the Station and
the Xxxxxx Station. For so long as this Agreement remains in effect, Seller
covenants and agrees to cause any assignee of the FCC licenses for the Xxxxxx
Station to agree, for the direct benefit of Purchaser, to assume Seller's
obligations under this Section 6.9; provided, however, that upon any such
assignment of the FCC licenses for the Xxxxxx Station to a third party assignee,
Seller shall have no Liability under this Section 6.9. In the event that any
assignee of the FCC licenses for the Xxxxxx Station acquires such FCC licenses
and, in connection therewith, assumes the obligations of Seller under this
Section 6.9, Seller and such assignee shall not amend the obligations assumed
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld, conditioned or delayed.
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 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).
-20-
7.4. No Orders.
No Order or temporary, preliminary or permanent injunction or
restraining order shall have been entered by any Governmental Authority which
expressly prohibits or materially restrains the transactions contemplated by
this Agreement.
7.5. Third Party Consents.
Any Third Party Consents required for the assignment of the lease for
the Leased Transmitter Site shall have been obtained without the imposition of
any additional monetary obligations on Purchaser or any other conditions
materially adverse to Purchaser.
7.6. Closing Deliveries.
Purchaser shall have received each of the documents or items required
to be delivered to it pursuant to Section 9.1 hereof.
ARTICLE 8.
CONDITIONS TO SELLER'S CLOSING
The obligations of Seller to sell, transfer, convey and deliver the
Purchased Assets and to proceed with the Closing are subject to the satisfaction
(or waiver in writing by Seller) at or prior to the Closing of the following
conditions:
8.1. Representations and Warranties.
The representations and warranties of Purchaser contained in this
Agreement shall be true and correct 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).
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
-21-
by this Agreement shall not be subject to the condition that the FCC Order be a
Final Order).
8.4. No Orders.
No Order or temporary, preliminary or permanent injunction or
restraining order shall have been entered by any Governmental Authority which
expressly prohibits or materially restrains the transactions contemplated by
this Agreement.
8.5. Closing Deliveries.
Seller shall have received each of the documents or items required to
be delivered to it pursuant to Section 9.2.
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 bills of sale, agreements of assignment and similar
instruments of transfer to the Purchased Assets contemplated by Section 3.3
hereto.
9.1.2. A certificate, signed by an executive officer of Seller, as to
the fulfillment of the conditions set forth in Section 7.1 and Section 7.2
hereof.
9.1.3. The Business Records.
9.2. Delivery by Purchaser.
At the Closing, Purchaser shall deliver to Seller the following:
9.2.1. The Purchase Price in the amount and manner set forth in
Section 3.1.
9.2.2. A certificate, signed by an executive officer of Purchaser, as
to the fulfillment of the conditions set forth in Section 8.1 and Section 8.2
hereof.
9.2.3. An assumption agreement pursuant to which Purchaser shall
assume the Assumed Contract.
-22-
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 is diligently attempting to cure such breach);
10.1.3. by either Purchaser or Seller if the FCC denies the FCC
Assignment Application in an order that has become a Final Order, or has
designated the FCC Assignment Application for a hearing; or
10.1.4. by either Purchaser or Seller if the Closing has not occurred
on or before such date which is six (6) months after the date of this Agreement
(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 and 11.4 shall expressly survive the termination of
this Agreement.
-23-
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.
-24-
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:
Hispanic Broadcasting Corporation
0000 Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx & Xxxxxx, P.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-25-
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
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.
-26-
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, including the Schedules and Exhibits hereto and the
other instruments and documents referred to herein or delivered pursuant hereto
contains the entire agreement among the parties with respect to the subject
matter hereof and supersedes 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.
-27-
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.]
-28-
IN WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement as of the date first above written.
SELLER
BIG CITY RADIO, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------------
Title: Vice President and
-------------------------------------
Chief Financial Officer
-------------------------------------
BIG CITY RADIO-CHI, L.L.C.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------------
Title: Vice President and
-------------------------------------
Chief Financial Officer
-------------------------------------
PURCHASER
HBC Illinois, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Senior Vice President and
-------------------------------------
Chief Financial Officer
-------------------------------------
ANNEX I
DEFINITIONS
"Accounts Receivables" shall mean all accounts receivable with respect
to the Station as of the end of the broadcast day immediately preceding the
Closing Date.
"Additional Excluded Site" shall have the meaning set forth in Section
2.2.9.
"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.
"Assumed Contract" shall have the meaning set forth in Section 2.1.7.
"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 2.1.6.
"Closing" shall have the meaning set forth in Section 3.2.
"Closing Date" shall have the meaning set forth in Section 3.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
all Laws promulgated pursuant thereto or in connection therewith.
"Communications Act" shall mean the Communications Act of 1934, as
amended.
"Confidentiality Agreement" shall have the meaning set forth in Section
6.4.
"Designated Licensee" shall mean Superior Broadcasting of Chicago, LLC.
"Environmental Laws" shall mean the applicable provisions of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
("CERCLA"); 42 U.S.C.(S) 9601 et seq.; the Toxic Substances Control Act
("TSCA"), 15 U.S.C.(S) 2601 et seq.; the Hazardous Materials Transportation Act,
49 U.S.C.(S) 5101 et seq.; the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C.(S) 6901 et seq.; the Clean Water Act ("CWA"), 33 U.S.C.(S) 1251 et
seq.; the Safe Drinking Water Act, 42 U.S.C.(S) 300f et seq.; the Clean Air Act
("CAA"), 42 U.S.C.(S) 7401 et seq.; or any other applicable federal, state, or
local laws relating to Hazardous Materials generation, production, use, storage,
treatment, transportation or disposal, or the protection of the environment
"Excluded Assets" shall have the meaning set forth in Section 2.2.
"Excluded Studio Site" shall have the meaning set forth in Section
2.2.8.
"FCC" shall mean the Federal Communications Commission.
"FCC Assignment Application" shall have the meaning set forth in
Section 6.1.1.
"FCC Licenses" shall have the meaning set forth in Section 2.1.1.
"FCC Modification Application" shall mean an FCC modification
application requesting FCC consent to modifications to the signal and signal
location for the Station, which application complies with all applicable FCC
rules, regulations and policies, including all information necessary for Seller
to make any certifications therein.
"FCC Xxxxxx Modification Application" shall have the meaning set forth
in Section 6.9.
"FCC Order" shall mean that the FCC (including the Media Bureau
pursuant to delegated authority) has granted or given its consent, without any
condition materially adverse to Purchaser or Seller, to the assignment of the
FCC Licenses in accordance with the terms of the FCC Assignment Application.
"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
Annex I-2
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 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.
"HBC" shall have the meaning set forth in the Recitals.
"Law" shall mean any statute, law, ordinance, rule or regulation.
"Leased Transmitter Site" 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, whether in contract, tort, strict
liability or otherwise and whether or not actually reflected, or required by
generally accepted accounting principles to be reflected, in such Person's
balance sheets or other books and records.
"Liens" shall mean, statutory or otherwise, security interests, claims,
pledges, licenses, equities, options, conditional sales contracts, assessments,
levies, charges or encumbrances of any nature whatsoever.
"Material Adverse Effect" or "material adverse effect" shall mean a
material adverse effect on the Purchased Assets taken as a whole, but shall
specifically exclude any material adverse effect caused by (a) factors affecting
the radio industry generally or the market in which the Station operates, (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.
"Merger" shall have the meaning set forth in the Recitals.
"Merger Sub" shall have the meaning set forth in the Recitals.
Annex I-3
"Xxxxxx Station" shall mean radio broadcast station WYXX(FM) licensed
to Morris, Illinois.
"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 due and
payable; (b) landlord's Liens and Liens for property taxes not delinquent; (c)
statutory Liens that were created in the ordinary course of business and which
are not delinquent; (d) restrictions or rights granted to Governmental
Authorities under applicable Law 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 Site that do not materially
affect the current use and enjoyment thereof in the operation of the Station or
the value of the Leased Transmitter Site; (g) customary utility and similar
easements affecting property; and (h) Liens for which a proration adjustment is
made pursuant to Section 3.5 of this Agreement.
"Person" or "person" shall mean any individual, corporation,
partnership, limited liability company, joint venture, trust, unincorporated
organization, other form of business or legal entity or Governmental Authority.
"Purchase Price" shall have the meaning set forth in Section 3.1.
"Purchased Assets" shall have the meaning set forth in Section 2.1.
"Purchaser" shall have the meaning set forth in the Preamble.
"Seller" shall have the meaning set forth in the Preamble.
"Seller Entities" shall have the meaning set forth in Section 5.8.
"Station" shall have the meaning set forth in the Recitals.
"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.
Annex I-4
"Third Party Consents" shall have the meaning set forth in Section
4.15.
"Univision" shall have the meaning set forth in the Recitals.
Annex I-5
EXHIBITS
Exhibit A FCC Assignment Application
SCHEDULES
Schedule 2.1.1 FCC Licenses
Schedule 2.1.2 Leased Transmitter Site
Schedule 2.1.5 Trade Names
Schedule 2.1.7 Assumed Contract
Schedule 4.3 Consents and Approvals
Schedule 4.7 Tangible Personal Property
Schedule 4.15 Third Party Consents
Schedule 6.9 Engineering Report
