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EXHIBIT 2.42
BONNEVILLE INTERNATIONAL CORPORATION
BONNEVILLE HOLDING COMPANY
BROADCAST HOUSE
00 XXXXX 000 XXXX
XXXX XXXX XXXX, XXXX 00000
August 6, 1997
Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
Evergreen Media Corporation
000 Xxxx Xxx Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Xxxxxx Xxxxxx, President
Chancellor Broadcasting Company
Suite 405
00000 X. Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxx 00000
Re: Bonneville/Evergreen/Chancellor
Dear Xxxxx and Xxxxxx:
This letter agreement, when signed by all parties below, will
constitute a grant by Bonneville Holding Company and Bonneville International
Corporation and/or their assigns (collectively, "Bonneville") to Evergreen
Media Corporation ("EMC") and Chancellor Broadcasting Company ("Chancellor"),
and/or their affiliates, subsidiaries and assigns (collectively, "Evergreen")
of an option (the "Option") to cause the parties hereto to enter into and
consummate those certain transactions described herein (the "Transaction").
The price for the Option will be Three Million Dollars
($3,000,000) (the "Option Payment") to be paid in cash by Evergreen by 5:00
p.m. EDT on August 8, 1997. The Option may be exercised at any time after
September 1, 1997 until 5:00 p.m. EST on December 31, 1997 (the "Option
Expiration Date"), by written notice from Evergreen to Bonneville (the
"Exercise"). If Evergreen effects the Exercise, then the parties will negotiate
in good faith a final agreement governing the Transaction (the "Exchange
Agreement"). The Exchange Agreement will be based upon the essential terms and
conditions contained herein, together with such other terms and conditions as
are customarily found in agreements governing similar transactions. The
Exchange Agreement will be signed no later than ten (10) business days after
the Exercise. The Exchange Agreement will not require Bonneville to disclose
financial information regarding the Corporation of the President of the Church
of Xxxxx Xxxxxx of Latter-Day Saints and its subsidiaries and affiliates
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(other than Bonneville) to regulatory agencies in connection with the
Transaction. If the parties are unable to agree on the final terms and
conditions of the Exchange Agreement, they will be bound and governed by this
letter agreement. If Evergreen does not effect the Exercise, then Bonneville
shall retain the Option Payment and the parties shall have no further
obligations to the other hereunder.
The parties acknowledge that EMC and Chancellor have entered
into an Agreement and Plan of Merger dated February 19, 1997 (the "Merger
Agreement"). EMC and Chancellor presently contemplate that their merger will
close in early September 1997, at which time EMC will be the surviving entity
and will be renamed Chancellor Media Corporation (the "Merger"). Consequently,
it is anticipated that the collective rights and obligations of Chancellor and
EMC will become those of Chancellor Media Corporation (and its subsidiaries)
pursuant to the Merger. In the event the Merger Agreement is terminated or the
closing of the Merger is delayed, upon Exercise, EMC and Chancellor agree that
they will each contribute their respective stations and be jointly and
severally obligated to contribute the Cash Consideration (as defined below) in
order to permit the Transaction to be consummated in an orderly manner.
In the Transaction, Bonneville will receive from Evergreen
certain operating assets of radio stations WTOP(AM), Washington, D.C.,
WGMS(FM), Washington, D.C. and KZLA(FM), Los Angeles, California (the
"Evergreen Stations"), as well as certain facilities of radio station WASH(FM),
Washington, D.C., and Sixty Million Dollars ($60,000,000) in cash (less the
Option Payment and interest on the Option Payment at eight percent (8%) per
annum from August 8, 1997 until the closing date of the Transaction) (the "Cash
Consideration") in exchange for certain operating assets of radio stations
WDBZ(FM), New York, New York, KLDE(FM), Houston, Texas and KBIG(FM), Los
Angeles, California (the "Bonneville Stations").
The assets of WTOP(AM) to be acquired by Bonneville (the
"WTOP Assets") are all of the assets used or held for use in the operation of
WTOP(AM) or associated with the business of WTOP(AM), including but not limited
to (i) all of the licenses, permits, permissions, call letters and other
authorizations issued to Evergreen by the Federal Communications Commission
("FCC"), (ii) all real property together with all improvements thereon, to the
extent of any interest owned or leased by Evergreen, (iii) all equipment,
studio and office furniture, fixtures, materials and supplies, inventories,
spare parts and other tangible personal property, and (iv) all of Evergreen's
rights in and to trademarks, trade names, service marks, including
registrations and applications for registration of any of them, licenses,
permits and privileges, trade secrets, call signs and other similar intangible
personal property and interests relating to WTOP(AM).
The assets of WGMS(FM) to be acquired by Bonneville (the
"WGMS Assets") are all of the assets used or held for use in the operation of
WGMS(FM) or associated with the business of WGMS(FM) including but not limited
to (i) all of the licenses, permits, permissions, call letters and other
authorizations issued to Evergreen by the FCC, (ii) all real property together
with all
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improvements thereon, to the extent of any interest owned or leased by
Evergreen, (iii) all equipment, studio and office furniture, fixtures,
materials and supplies, inventories, spare parts and other tangible personal
property, (iv) the WASH(FM) studio lease and all WASH(FM) studio and office
equipment, furniture, fixtures, materials and supplies, inventories, spare
parts and other tangible personal property located at the WASH(FM) studio other
than promotional, sales, marketing and format specific programming materials,
supplies, inventories and property, and (v) all of Evergreen's rights in and to
trademarks, trade names, service marks, including registrations and
applications for registration of any of them, licenses, permits and privileges,
trade secrets, call signs and other similar intangible personal property and
interests relating to WGMS(FM). Notwithstanding anything in this paragraph to
the contrary, the WGMS Assets shall not include the real property rights
relating to the WGMS(FM) studio and the WGMS(FM) equipment, furniture,
fixtures, materials and supplies, inventories, spare parts and other tangible
personal property located at the WGMS(FM) studio other than promotional, sales,
marketing and format specific programming materials and supplies, inventories
and property.
The assets of KZLA(FM) to be acquired by Bonneville (the
"KZLA Assets") are all of the assets used or held for use in the operation of
KZLA(FM) or associated with the business of KZLA(FM) including but not limited
to (i) all of the licenses, permits, permissions, call letters and other
authorizations issued to Evergreen by the FCC, (ii) all real property together
with all improvements thereon, to the extent of any interest owned or leased by
Evergreen, (iii) all equipment, studio and office furniture, fixtures,
materials and supplies, inventories, spare parts and other tangible personal
property, and (iv) all of Evergreen's rights in and to trademarks, trade names,
service marks, including registrations and applications for registration of any
of them, licenses, permits and privileges, trade secrets, call signs and other
similar intangible personal property and interests relating to KZLA(FM).
Notwithstanding anything in this paragraph to the contrary, the KZLA Assets
shall not include the real property rights relating to the KZLA(FM) studio and
the equipment, furniture, fixtures, materials and supplies, inventories, spare
parts and other tangible personal property located at the KZLA(FM) studio other
than promotional, sales, marketing and format specific programming materials
and supplies, inventories and property.
The assets of WDBZ(FM) to be acquired by Evergreen (the "WDBZ
Assets") are all of the assets used or held for use in the operation of
WDBZ(FM) or associated with the business of WDBZ(FM), including but not limited
to (i) all of the licenses, permits, permissions, call letters and other
authorizations issued to Bonneville by the FCC, (ii) all real property together
with all improvements thereon, to the extent of any interest owned or leased by
Bonneville, (iii) all equipment, studio and office furniture, fixtures,
materials and supplies, inventories, spare parts and other tangible personal
property, and (iv) all of Bonneville's rights in and to trademarks, trade
names, service marks, including registrations and applications for registration
of any of them, licenses, permits and privileges, trade secrets, call signs and
other similar intangible personal property and interests relating to WDBZ(FM).
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The assets of KLDE(FM) to be acquired by Evergreen (the "KLDE
Assets") are all of the assets used or held for use in the operation of
KLDE(FM) or associated with the business of KLDE(FM), including but not limited
to (i) all of the licenses, permits, permissions, call letters and other
authorizations issued to Bonneville by the FCC, (ii) all real property together
with all improvements thereon, to the extent of any interest owned or leased by
Bonneville, (iii) all equipment, studio and office furniture, fixtures,
materials and supplies, inventories, spare parts and other tangible personal
property, (iv) all of Bonneville's rights in and to trademarks, trade names,
service marks, including registrations and applications for registration of any
of them, licenses, permits and privileges, trade secrets, call signs and other
similar intangible personal property and interests relating to KLDE(FM), and
(v) the partnership interest held by a subsidiary of Bonneville in the
partnership that owns the tower on which the KLDE(FM) antenna is located.
The assets of KBIG(FM) to be acquired by Evergreen (the "KBIG
Assets") are all of the assets used or held for use in the operation of
KBIG(FM) or associated with the business of KBIG(FM), including but not limited
to (i) all of the licenses, permits, permissions, call letters and other
authorizations issued to Bonneville by the FCC, (ii) all real property together
with all improvements thereon, to the extent of any interest owned or leased by
Bonneville, (iii) all equipment, furniture, fixtures, materials and supplies,
inventories, spare parts and other tangible personal property, and (iv) all of
Bonneville's rights in and to trademarks, trade names, service marks, including
registrations and applications for registration of any of them, licenses,
permits and privileges, trade secrets, call signs and other similar intangible
personal property and interests relating to KBIG(FM). Notwithstanding anything
in this paragraph to the contrary, the KBIG Assets shall not include the
KBIG(FM) studio and the equipment, furniture, fixtures, materials and supplies,
inventories, spare parts and other tangible personal property located at the
KBIG(FM) studio other than promotional, sales, marketing, and format specific
programming materials and supplies, inventories and property.
At the closing of the Transaction, Bonneville will receive
from Evergreen, free and clear of all liens, claims and encumbrances of every
kind (other than customary permitted encumbrances), subject to all the terms
and conditions of the Exchange Agreement, all of the WTOP Assets, the WGMS
Assets and the KZLA Assets (the WTOP Assets, the WGMS Assets and the KZLA
Assets are referred to collectively herein as the "Evergreen Assets"). In
addition, Bonneville will receive the Cash Consideration at the closing. BIA
will be used to appraise the assets and allocate the purchase price.
At the closing of the Transaction, Evergreen will receive
from Bonneville, free and clear of all liens, claims and encumbrances of every
kind (other than customary permitted encumbrances), subject to all the terms
and conditions of the Exchange Agreement, all of the WDBZ Assets, the KLDE
Assets and the KBIG Assets (the WDBZ Assets, the KLDE Assets and the KBIG
Assets are referred to collectively herein as the "Bonneville Assets").
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The Evergreen Assets and the Bonneville Assets will not
include cash, cash equivalents, accounts receivable, prepaid assets,
securities, investments, deposits, prepayments, refunds of taxes for periods
prior to the closing date, employee benefit plans or contracts of insurance,
the proceeds thereof or claims thereunder or certain financial, accounting and
management information software. Bonneville shall retain the right to use the
00 xXx xxxxxxxxx of WDBZ(FM) and KBIG(FM) for the broadcast of public service
programming (the LDS Radio Network) for a period of three (3) years after
closing of the Transaction and thereafter until an offer is made by a third
party to lease the sidebands. Bonneville shall have the right of first refusal
to match any such offer. Evergreen shall retain the right to use the 92 kHz
sideband of KZLA(FM), to the extent not already committed by Evergreen, for the
same period, and at the same cost as Bonneville is using the 00 xXx xxxxxxxx of
KBIG(FM).
Closing of the Transaction shall occur within 10 days after
all required regulatory approvals have become "final" and all closing
conditions have been met. However, Evergreen may, in its sole discretion, defer
closing up to March 31, 1998. In the event Evergreen so elects to defer
closing, it shall be the responsibility of Evergreen to keep all necessary
regulatory approvals effective throughout such deferral period until closing.
Except for Star Media, the parties have not engaged any
brokers involved in the Transaction between Evergreen and Bonneville
contemplated herein. Bonneville shall be solely liable for any obligation of
Bonneville to Star Media arising from or as a result of this Transaction.
Evergreen shall be solely liable for any obligation of Evergreen to Star Media
arising from or as a result of this Transaction.
Bonneville and Evergreen agree to negotiate in good faith the
terms of time brokerage agreements ("TBAs") under which Bonneville will
purchase substantially all of the broadcast time on the Evergreen Stations and
Evergreen will purchase substantially all of the broadcast time on the
Bonneville Stations. Such TBAs shall commence on the tenth (10th) day after the
expiration or early termination of the last waiting period applicable to the
transfer of all of the Evergreen Stations and the Bonneville Stations under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 ("HSR"). The TBAs for all
of the Evergreen Stations and the Bonneville Stations shall commence at the
same time. Under the TBAs, the programmer shall reimburse the other party for
all its actual costs of operating the station(s) in question. Neither
Bonneville nor Evergreen shall pay any additional TBA fee as programmer under
the TBAs; provided, however, that, if Evergreen elects to defer the closing the
Transaction, Evergreen shall pay to Bonneville an additional aggregate amount
under the TBA(s) for the Bonneville Stations of Four Hundred Thousand Dollars
($400,000) per month beginning 20 days after all required regulatory approvals
for the transaction have become "final."
The studios and offices of WTOP(AM) are co-located with those
of radio station WASH(FM). Evergreen will move the WASH(FM) personnel and
promotional, sales, marketing
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and format specific programming materials, supplies, inventories and property
to the studio location presently used by WGMS(FM). Bonneville will move the
WGMS(FM) personnel and promotional, sales, marketing and format specific
programming materials, supplies, inventories and property to the WASH(FM)
studio location. These studio and office relocations will be coordinated
between the parties hereto and will take place within sixty (60) days of the
effective date of the TBAs. However, the studio arrangements for WGMS(FM) and
WASH(FM) shall be subject to further discussions by the parties to ensure that
WASH(FM) will have adequate studio space.
As part of the TBAs, Evergreen will assign to Bonneville and
Bonneville will assume all contracts, leases and other agreements of Evergreen
relating to WTOP(AM) and WGMS(FM) (including contracts and agreements relating
to personnel and union contracts, but excluding contracts, leases and
agreements relating to the WGMS(FM) studio and other excluded assets). In
addition, Evergreen will assign to Bonneville and Bonneville will assume all
contracts, leases and other agreements of Evergreen relating to KZLA(FM)
(including contracts and agreements relating to personnel and union contracts,
the transmitter location, format and programming, but excluding contracts and
agreements relating to the KZLA(FM) studio and other excluded assets).
As part of the TBAs, Bonneville will assign to Evergreen and
Evergreen will assume all contracts, leases and other agreements of Bonneville
relating to WDBZ(FM) and KLDE(FM) (including contracts and agreements relating
to personnel and union contracts). In addition, Bonneville will assign to
Evergreen and Evergreen will assume all contracts, leases and other agreements
of Bonneville relating to KBIG(FM) (including contracts and agreements relating
to personnel and union contracts, the transmitter location, format and
programming, but excluding contracts, leases and agreements relating to the
KBIG(FM) studio).
All contracts, leases and agreements of the parties to be
assigned and assumed shall be assigned and assumed as of the effective date of
the TBAs (except in all cases for studio and transmitter site leases), if any
necessary third party consents can be timely obtained. Real estate leases and
any other contracts to be assigned under the TBAs or the Exchange Agreement and
not previously assigned shall be assigned at closing. Third party consents must
be obtained for contracts, leases and agreements relating to each station's
main antenna site.
Except as may be otherwise provided in the TBAs, neither
party shall be required to assume or undertake to pay, satisfy or discharge any
of the liabilities, obligations, commitments or responsibilities of the other
party except for (a) liabilities of such party arising and accruing after
closing or (b) liabilities, obligations, commitments or responsibilities
arising under contracts assumed by such party.
Subject to specific exceptions subsequently agreed to by the
parties, Bonneville shall offer employment as of the effective date of the TBAs
to all employees of Evergreen
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employed at WTOP(AM) and WGMS(FM) and to the programming personnel of KZLA(FM)
on terms and conditions of employment to be decided by Bonneville. Bonneville
will assume responsibility for any severance for employees of the Bonneville
Stations hired by Evergreen (other than employees under employment contracts)
who are terminated by Evergreen within 60 days of the effective date of the
TBAs. Evergreen will assume responsibility for any severance that may be owed
to employees of the Bonneville Stations hired by Evergreen under any employment
contract assumed by Evergreen.
Subject to specific exceptions subsequently agreed to by the
parties, Evergreen shall offer employment as of the effective date of the TBAs
to all employees of Bonneville employed at WDBZ(FM) and KLDE(FM) and to the
programming personnel of KBIG(FM) on terms and conditions of employment to be
decided by Evergreen. Evergreen will assume responsibility for any severance
for employees of the Evergreen Stations hired by Bonneville (other than
employees under employment contracts) who are terminated by Bonneville within
60 days of the effective date of the TBAs. Bonneville will assume
responsibility for any severance that may be owed to employees of the Evergreen
Stations hired by Bonneville under any employment contracts assumed by
Bonneville.
In consideration of the effort and expense to be incurred by
Bonneville and Evergreen between the date of this letter agreement and the date
of the execution by the parties of the Exchange Agreement, the parties agree
that (i) prior to October 15, 1997, they will not, directly or indirectly,
solicit, encourage or consider alternative offers for the sale of all or part
of the Bonneville Assets or the Evergreen Assets and (ii) neither party may
make any press release or other disclosure relating to the transactions
contemplated herein without the other party's advance consent. If the Option
has not been exercised by October 15, 1997, the parties may consider
alternative transactions, subject to the remaining rights under this Option.
It is the intention of the parties to undertake reasonable
efforts to structure the transaction contemplated hereby so that it qualifies
to the maximum extent possible as a tax deferred exchange under Section 1031 of
the Internal Revenue Code of 1986, as amended, provided however, none of the
parties hereto shall have any responsibility for the tax consequences to any
other party hereunder for said transactions and provided that this transaction
is not conditioned on such qualification.
Bonneville and Evergreen will share equally all sales and
transfer taxes and FCC and HSR filing fees.
The HSR filings for the transaction described herein shall be
filed within three (3) business days of the execution by both parties of this
letter. Such filings shall include copies of the fully executed letter. The FCC
applications will be filed upon Exercise, unless the parties agree to file
sooner.
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Each party hereto shall keep confidential and not disclose
any information obtained from another party hereto pursuant to this letter and
relating to the Transaction. If the Exchange Agreement is not executed by the
parties as set forth herein, all information obtained by a party from another
party shall be returned or destroyed (without retaining a copy thereof).
This letter agreement shall be governed by and construed in
accordance with the laws of the District of Columbia, without regard to the
choice of law rules utilized in that jurisdiction.
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Please indicate your agreement with the foregoing by
executing and returning this letter to me.
Very truly yours,
BONNEVILLE INTERNATIONAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
President and Chief Executive Officer
BONNEVILLE HOLDING COMPANY
By: /s/ Xxxxxx X Xxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
ACCEPTED AND AGREED TO:
EVERGREEN MEDIA CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Chairman and CEO
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CHANCELLOR BROADCASTING COMPANY
By: /s/ Xxxxxx Xxxxxx
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Its: President and CEO
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