1
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of January 8,
1999, by and between Spanish Broadcasting System of Puerto Rico, Inc., a Puerto
Rico corporation ("Buyer"), and Guayama Broadcasting Company, Inc., a Puerto
Rico corporation, and LaMega Estacion, Inc., a Puerto Rico corporation
(collectively the "Sellers").
W I T N E S S E T H:
WHEREAS, Sellers are the licensees of Radio Station WMEG(FM) and
Radio Station WEGM(FM), licensed to San Xxxx and Mayaguez, Puerto Rico,
respectively (the "Stations"), and related licenses and authorizations issued by
the Federal Communications Commission ("FCC"); and
WHEREAS, Sellers desire to sell certain properties and assets
pertaining to the Stations, and Buyer desires to purchase the same, all subject
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Sellers and Buyer hereby agree as follows:
2
Section 1. Purchase and Sale of Properties and Assets.
(a) Stations' Assets. Subject to and in reliance upon the
representations, warranties and agreements herein set forth, and subject to the
terms and conditions herein contained, on the Closing Date (as defined in
Section 4), Sellers agrees to convey, sell, assign, transfer and deliver to
Buyer, and Buyer agrees to purchase certain of the assets of the Stations,
including, but not limited to, the following assets (collectively, the
"Stations' Assets"):
(i) Licenses and Authorizations. The licenses, permits and
authorizations issued by the FCC listed on Schedule 1(a)(i) hereto
(collectively, the "Licenses"), and all the rights of Sellers in and to the call
letters "WMEG(FM)" and "WEGM(FM)"
(ii) Records, Etc. Except as excluded in Section 1(b), all
files, logs and books (or true copies thereof) relating to the operation of the
Stations, including all records, reports, logs and documents required by the FCC
to be maintained and the complete local public file (collectively, the
"Records"); provided, however, that Sellers shall be entitled to keep the
originals of records for periods prior to January 1, 1998 (the "Sellers-Retained
Records"), it being understood that as to the Records (1) Sellers shall have the
right on reasonable request and at its expense to make copies thereof; (2) Buyer
shall have the right on reasonable request and at its expense to make copies of
the Sellers-Retained Records; and (3) Buyer shall preserve and
2
3
protect the originals of all records (except Sellers-Retained Records) for a
period of six (6) years from and after the Closing Date.
(iii) Personal Property. The tangible personal property of
Sellers listed on Schedule(1)(a)(iii) hereto.
(iv) Real Property. Title to the real property as described in
Schedule 1(a)(iv) hereof owned by Sellers conveying marketable fee simple title,
free and clear of all liens, charges, security interests, claims, obligations
and encumbrances whatsoever, and from conditions, equities, reservations,
restrictions, encroachments, adverse leases, easements, servitude and
limitations, except for restrictions and easements of record as of the date of
this Agreement, none of which shall have a material adverse effect on the
ability of the Buyer to continue operating the Stations in the same manner as
they are now being operated, and except for liens and taxes not yet due and
payable. For purposes of this Agreement, "material adverse effect" shall mean a
condition or conditions which prevents the orderly operation of the Stations by
Buyer consistent with past and existing business practices.
(v) Goodwill. All of Sellers' goodwill in, and going concern
value of, the Stations.
(vi) Agreements, Etc. To the extent Sellers, using their best
efforts, are able to secure consents to assignment, the agreements, leases and
contracts listed on
3
4
Schedule 1(a)(vi) hereto, including any renewals, extensions, amendments or
modifications thereof, and any additional agreements, leases and contracts made
or entered into by Sellers in the ordinary course of business including, but not
limited to, all unperformed agreements for the sale of advertising on the
Stations.
(b) Excluded Assets. It is understood that no: (i) cash; (ii)
inter-company receivables; (iii) notes receivable; (iv) bank deposits; (v) other
cash equivalents and/or investment securities; (vi) accounts receivable; (vii)
contracts that have expired prior to the Closing Date in the ordinary course of
business; (viii) the articles of incorporation, by-laws, minute books, stock
transfer records and all other corporate, tax and accounting records relating to
the corporate affairs of Sellers; (ix) sales, income and other tax refunds and
claims therefore relating to the period prior to the Closing; (x) insurance
policies; (xi) claims against third parties, based on activities occurring prior
to Closing; (xii) any and all insurance proceeds or claims made by Sellers
relating to property or equipment repaired, replaced or restored by Sellers
prior to the Closing Date; (xiii) all pension, profit-sharing or cash or
deferred compensation plans and trusts and the assets thereof and any other
employee benefit plan or arrangement and the assets thereof, if any; (xiv) all
choses in action of Sellers relating to the Stations, which exist on or prior
to the Closing Date and
4
5
which related entirely to the period before the Closing Date; (xv) all deposits
with utilities, governmental agencies, landlords and the like; and (xvi) all
other assets not specifically included as the Stations' Assets (all of which are
referred to as "Excluded Assets") shall be included in the assets being
purchased by Buyer.
(c) Liens. Sellers agree that the Stations' Assets to be conveyed on
the Closing Date pursuant to this Agreement will be conveyed free and clear of
all liens, charges, claims and encumbrances of any kind, except for restrictions
and easements of record as of the date of this Agreement, none of which shall
have a material adverse effect on the ability of the Buyer to continue operating
the Stations in the same manner as they are now being operated, and except for
liens and taxes not yet due and payable.
(d) Liabilities. Buyer shall assume and undertake to pay, discharge
and perform the obligations and liabilities of Sellers relating to the Stations
and the Stations' Assets which are referenced in this Agreement for the period
beginning, or arising out of events occurring on or after, 12:01 A.M. on the
Closing Date. Except as otherwise expressly provided in this Agreement, Buyer
will not assume, incur or be charged with, in connection with the transactions
herein contemplated, any liabilities or obligations of any nature whatsoever,
contingent or otherwise, of the Sellers or the Stations arising (i) prior to
5
6
the Closing, or (ii) in connection with the operation of the Stations or the
Stations' Assets or any claims asserted against the Stations or the Stations'
Assets relating to any event (whether act or omission) prior to the Closing,
except for severance pay obligations to Sellers employees who are employed by
Buyer as Buyer's employees immediately after the Closing. Except as specified in
this Agreement, Sellers retain all obligations and liabilities not expressly
assumed by Buyer hereunder without any liability to Buyer.
(e) Trade Agreements. Schedule 1(e) includes, but is not limited to,
a description of agreements for the sale of time on the Stations for merchandise
or services ("Trade Agreements") on the date hereof and correctly sets forth
Sellers' current obligations under each such Trade Agreement. On the Closing
Date, Buyer shall assume the Trade Agreements listed on this Schedule; provided,
however, that if Sellers' aggregate obligations under Trade Agreements as of the
Closing Date exceed Ten Thousand Dollars ($10,000), then all amounts in excess
of $10,000.00 shall be considered an operating expense of Sellers to be
pro-rated in accordance with Section 3. The Trade Agreements shall be considered
assumed by Buyer. Sellers shall use reasonable efforts to eliminate any negative
balance in excess of $10,000.00 for Trade Agreements prior to the Closing Date.
6
7
Section 2. Purchase Price and Method of Payment.
(a) Purchase Price and Method of Payment. The purchase price for the
assets acquired hereunder shall be Sixteen Million Dollars ($16,000,000) (the
"Purchase Price") which shall be paid to Sellers at Closing in same day funds by
wire transfer to an account specified by Sellers at least two business days
prior to Closing.
(b) Allocation of Purchase Price. Buyer and Sellers agree that the
Purchase Price shall be allocated to the Assets by Buyer, which allocation shall
not be unreasonably refused by Sellers on or before the Closing Date.
Section 3. Adjustments and Assumptions; Accounts Receivable. The
expenses and income attributable to the operation of the Stations up to 12:01
a.m. on the Closing Date (the "adjustment time") shall be for the account of
Sellers and thereafter shall be for the account of Buyer. Such expenses and
income (excepting categories of income not included within the Stations' Assets)
including, but not limited to, power and utility charges, lease rents, taxes
(excluding taxes arising by reason of the transfer of the Stations' Assets,
which shall be paid as specified in Section 16 hereof), San Xxxx and Mayaguez
municipal license fees and FCC regulatory fees, and similar prepaid and deferred
items shall be prorated between Sellers and Buyer as of the adjustment time.
In furtherance hereof:
7
8
(a) Preliminary Adjustment. Sellers and Buyer shall use their
reasonable best efforts to make all required proration adjustments at the
Closing. To the extent the parties are unable to complete the adjustment and
prorations at Closing, they shall make final adjustments as provided in
Subsection (b) hereof.
(b) Final Adjustment. Within sixty (60) days following the Closing
Date, Buyer shall prepare and deliver to Sellers a final proration and
adjustment statement (the "Final Proration and Adjustment Statement") indicating
the prorations as set forth above. Within ten (10) days of receipt of the Final
Proration and Adjustment Statement, Sellers shall either accept the prorations
set forth in the Final Proration and Adjustment Statement or give Buyer a notice
disputing such prorations ("Notice of Disagreement"). If Sellers fail either to
accept the prorations set forth in the Final Proration and Adjustment Statement
or to give Buyer a Notice of Disagreement within ten (10) days of receipt of the
Final Proration and Adjustment Statement, then Sellers shall be deemed to have
accepted such prorations. The Notice of Disagreement shall state the amount that
Sellers believe is due to Sellers ("Sellers' Amount"), and Buyer shall have ten
(10) days to accept or reject Sellers' Amount. If Buyer rejects Sellers' Amount,
the dispute shall be submitted to a mutually-acceptable accountant (the
"Accountant" for resolution as soon as practical, which resolution shall be
final and binding on the parties. The fees of the Accountant
8
9
shall be paid by the parties in inverse proportion to the award of the disputed
amount to the parties (i.e., if Party A contends it is due $6,000, Party B
contends Party A is due $4,000 and if Accountant determines that $5,200 is due
Party A, then Party A shall pay 40% of the fees and Party B shall pay 60% of the
fees). All amounts owed pursuant to this Section 3 shall be paid within ten (10)
days of resolution of the amount due. If such amount is not paid within such ten
(10) day period, interest on such amount shall accrue until paid at the prime
rate as published from time to time in the Wall Street Journal plus five percent
(5%).
(c) Accounts Receivable. All accounts receivable arising out of the
conduct of the business and operations of the Stations prior to the Closing Date
("Sellers' Accounts Receivable") shall be identified and valued as of the day
immediately prior to that date. Sellers hereby assign to Buyer Sellers' Accounts
Receivable, effective upon the Closing Date, solely for the collection hereof.
For a period of 120 days after the Closing Date, Buyer shall use reasonable
efforts to collect Sellers' Accounts Receivable in the normal and ordinary
course of business. Buyer's authority shall not extend to the compromise of any
Sellers' Accounts Receivable or the institution of litigation, employment of
counsel or a collection agency or any other extraordinary means of collection
unless authorized by Sellers in writing. Buyer shall apply all such amounts
collected on Sellers' Accounts Receivable first to the account debtor's
9
10
oldest invoice not in dispute (except that any such amounts collected by Buyer
from account debtors who are also indebted to Buyer for the purchase of
advertising time on the Stations may be applied to Buyer's account where there
is a pre-existing bona fide dispute between Sellers and such account debtor with
respect to all of its invoices), and Buyer shall provide to Sellers an aging
report and a collections report and shall pay Sellers the full amount collected
on Sellers' Accounts Receivable, net of commissions, within fifteen (15) days
after the end of each calendar month during the above-mentioned 120 day period.
Any of Sellers' Accounts Receivable remaining uncollected at the earlier of the
termination date of this Agreement or the end of such 120 day period shall be
re-assigned to Sellers for collection. All accounts receivable arising out of
the conduct of the business and operation of the Stations on and after the
Closing Date shall be and remain the property of Buyer.
Section 4. The Closing.
(a) FCC Consent. Consummation of the transactions contemplated
hereunder is conditioned upon the FCC having given its consent in writing to the
assignment to Buyer of the FCC licenses and other authorizations set forth in
subparagraph 1(a)(i) hereof, and such consent having become "final", i.e., no
longer subject to timely review by the FCC or by any court or, in the event of
reconsideration upon its own motion or otherwise by the FCC or an appeal by any
person to any court, upon the
10
11
decision of such body becoming no longer subject to review (unless the Buyer
agrees to close without such consent having become "final"). The Closing shall
take place on a date not later than September 30, 1999 ("Outside Closing Date").
(b) FCC Application. The parties agree to proceed, as expeditiously
as practicable, to file or cause to be filed an application requesting FCC
consent to the transactions here involved. The parties agree that said
application shall be duly filed with the FCC not later than five (5) business
days after the date of execution of this Agreement, and that such application
shall be prosecuted by all parties in good faith and with due diligence. The
parties hereto shall each bear their own legal fees and any and all costs and
expenses not specified herein with respect to the sale and purchase of the
Stations' Assets including, without limitation, the preparation of the
applicable sections of the FCC application. However, all FCC filing fees shall
be paid one-half each by Sellers and Buyer.
(c) Closing. The date of Closing and the time thereof (herein
referred to as the "Closing Date"), shall be as mutually agreed to by the
parties; provided, that absent such agreement the Closing shall take place at
10:00 a.m. on the fifth business day after the FCC consent shall have become a
"final order." Closing shall take place at the offices of Sellers' counsel in
San Xxxx, Puerto Rico, or at such other place as may be mutually agreed to by
the parties to this Agreement.
11
12
Section 5. Sellers' Representations and Warranties.
Sellers represent, warrant and agree now and as of the Closing as
follows:
(a) Organization. Sellers are corporations duly organized and
validly existing and in good standing under the laws of the Commonwealth of
Puerto Rico, the only jurisdiction in which they conduct the business of
operating the Stations. Sellers have the full power and authority to own the
Stations' Assets and to carry on the business of the Stations as now being
conducted.
(b) Authorization of Agreement; No Breach.
(1) All corporate action necessary to be taken by or on the
part of Sellers in connection with the transactions contemplated hereby has been
duly and validly taken, and the execution, delivery and performance of this
Agreement have been duly and validly authorized. Sellers have the full power and
authority to execute, deliver and perform this Agreement and to consummate all
the transactions hereby contemplated. Neither such execution, delivery and
performance nor compliance by Sellers with the terms and provisions hereof will
(i) conflict with or result in a breach of any of the terms, conditions or
provisions of the Articles of Incorporation and By-Laws of Sellers, (ii)
(assuming receipt of all necessary approvals from the FCC) constitute a
violation of, conflict with or result in any breach of or default under, result
in any termination or
12
13
modification of, or cause any acceleration of any obligation of the Stations, to
which Sellers are a party or by which they are bound, or by which the Stations
or any of the Stations' Assets may be affected, or any judgment, order,
injunction, decree, law, regulation, rule or ruling of any court or other
governmental authority to which Sellers, the Stations or the Stations' Assets
are subject, or (iii) result in the creation or imposition of any lien, charge
or encumbrance against the Stations or the Stations' Assets which is not
released on or prior to Closing. Except for the consent of the FCC, and except
for the consent of certain third parties as may be required in contracts to be
assigned to Buyer hereunder, which consents Sellers shall use reasonable, good
faith efforts to obtain but which shall not be a condition precedent to Closing
(except for leases and agreements which are essential for the continued
operation of the Stations in the manner operated by Sellers as of the date
hereof, all of which are listed in Schedule 5(b)(1) hereof), no other consent,
approval or authorization of, or filing with, any person, entity or agency of
any kind not yet obtained is required. This Agreement constitutes the valid and
binding obligation of Sellers, enforceable against Sellers in accordance with
its terms (subject to any applicable bankruptcy, reorganization, insolvency or
other laws, now or hereafter in effect, affecting creditors' rights generally as
well as all rights in equity).
13
14
(2) Sellers are not in violation or breach of any of the
terms, conditions or provisions of their Articles of Incorporation or By-Laws,
or any court order, judgment, arbitration award, or decree relating to or
affecting the Stations or the Stations' Assets to which Sellers are a party or
by which they are bound and have received no notices of same.
(c) Licenses and Authorizations. Sellers are, and on the Closing
Date will be, the holder of the Licenses relating to the Stations, all of which
are in full force and effect (and none of which shall be altered or modified
between the date hereof and the Closing Date). Except as listed and described on
Schedule 1(a)(i), there is not pending, or to the knowledge of Sellers
threatened, any action by or before the FCC to revoke, suspend, cancel, rescind
or modify any of the FCC Licenses.
(d) Personal Property. Schedule 1(a)(iii) hereto contains a complete
and accurate list, as of the date hereof, of the tangible personal property used
in the operation of the Stations. At the Closing, all of such property shall be
owned by, and transferred to, Buyer free and clear of all liens, charges, claims
and encumbrances of any kind.
(e) Real Property. Schedule 1(a)(iv) hereto contains a complete and
accurate list of the real property, as of the date hereof, owned by Sellers. At
the Closing, all such property shall be owned by and transferred to Buyer, free
and clear of all liens, charges, claims and encumbrances of any kind whatsoever.
14
15
No condemnation proceeding is in existence concerning any of the real property;
there is no existing notice covering future condemnation; and Sellers have no
reason to believe that the real property will be condemned. The improvements on
the real property do not now and on the Closing Date will not violate in any
material respects the provisions of any applicable building codes, fire
regulations, building restrictions or other governmental ordinances, orders or
regulations, and the real property will be conveyed free and clear of any such
violations. The real property is zoned so as to permit the present commercial
uses of the real property including, the business of radio broadcasting. There
are no outstanding variances or special use permits materially affecting the
real property or the uses thereof. All of the real property (including all
improvements and fixtures thereon and appurtenances thereto) is in good
condition and repair, ordinary wear and tear and normal usage excepted, and is
adequate and suitable in all material respects for the operation of the Stations
as presently operated.
(f) Facilities. The transmitting facilities of the Stations,
including the towers, antenna, guy lines, anchors, ground system and all other
related buildings, structures and appurtenances are now and on the Closing Date
will be located entirely within the confines of the real property.
(g) Utilities. All utilities required for the operation of the real
property and improvements thereon now and
15
16
on the Closing Date will either enter the real property through adjoining public
streets, or if the utilities pass through adjoining private land, the utilities
do so in accordance with valid easements.
(h) Environmental. There are not, nor have there been, during the
ownership of the real property by the Sellers, any hazardous waste or hazardous
materials, as defined by applicable federal and Commonwealth law, or spills
thereof affecting the real property or its use for a radio station which has not
been remediated. The Real Property is not subject to any investigation, claim,
demand, proceeding, restriction, lien, encumbrance, order or agreement from, by
or with any governmental authority or private party concerning any Environmental
Law, or any release of any contaminant into the indoor or outdoor environment.
(i) No Litigation. There is no suit, action or other proceeding
pending or, so far as is known to Sellers, threatened against Sellers or the
Stations which would, if determined against Sellers or the Stations, have a
material adverse effect on the Stations or the Stations' Assets. There are no
judgments, orders, decrees or injunctions against the Sellers or the Stations
which adversely affect the Stations.
(j) Taxes. All federal, state and local tax returns required to be
filed by Sellers by the Closing Date (the "Tax Returns"), have or will have been
filed with the appropriate
16
17
governmental agencies in all jurisdictions in which Tax Returns are required
to be filed.
(k) Brokerage. Sellers agree to indemnify and hold harmless Buyer
against any loss, liability, damage, cost, claim or expense incurred by reason
of any brokerage, commission or finder's fee alleged to be payable because of
any act, omission or statement of the Sellers. No broker or finder has been
involved in this transaction or been engaged by Sellers.
(l) Compliance With Laws. Sellers have materially complied with, and
is not knowingly in violation of any federal or local laws, regulations, or
orders affecting the Stations' Assets, or the operation of the Stations. Without
limiting the generality of the foregoing:
(i) The Stations' transmitting and studio equipment is
operating in material compliance with the terms and conditions of the Stations'
Licenses, including without limitation all regulations concerning equipment
authorizations and human exposure to radio frequency radiation.
(ii) Sellers have complied, in all material respects, with all
applicable laws, rules and regulations relating to the employment of labor,
including those concerning wages, hours, equal employment opportunity,
collective bargaining, pension and welfare benefit plans, and the payment of
Social Security and similar taxes, and Sellers are not liable for
17
18
any arrearages of wages, tax withholding obligations, or any tax penalties
due to any failure to comply with any of the foregoing.
(m) Insurance. Sellers maintain insurance policies providing general
coverage against risks commonly insured against. To Sellers' knowledge, all of
such policies are in full force and effect and Sellers are not in default of any
material provision thereof. Sellers have not received notice from any issuer of
any such policies of its intention to cancel, terminate or refuse to renew any
policy issued by it. Sellers will continue to maintain such insurance coverage
in full force and effect through the Closing Date.
(n) No Misrepresentation or Omission. No representation or warranty
by Sellers in any certificate or other document furnished or to be furnished by
Sellers in connection with the transactions contemplated under this Agreement
contains or will contain any untrue statement of a material fact, or omits or
will omit a material fact necessary to make the statements contained herein or
therein not misleading or will omit to state a material fact necessary in order
to provide Buyer with accurate and complete information as to the Stations and
the Stations' Assets.
Section 6. Buyer's Representations and Warranties. Buyer represents,
warrants and agrees now and as of the date of Closing as follows:
18
19
(a) Organization. Buyer is a corporation organized, validly existing
and in good standing in the Commonwealth of Puerto Rico.
(b) Authorization of Agreement; No Breach. All corporate action
necessary to be taken by or on the part of Buyer in connection with the
transactions contemplated hereby have been duly and validly taken and the
execution, delivery and performance of this Agreement have been duly and validly
authorized by Buyer, and Buyer has the full corporate power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
hereby contemplated. Neither such execution, delivery and performance nor
compliance by Buyer with the terms and provisions hereof will (assuming receipt
of all necessary approvals from the FCC) conflict with or result in a breach of
any of the terms, conditions or provisions of the Certificate of Incorporation
or By-Laws of Buyer or any judgment, order, law, regulation or decree of any
court or other governmental authority to which Buyer is subject, or any material
agreement to which the Buyer is subject.
(c) Qualification. Buyer has no knowledge of any facts which would,
under present law (including the Communications Act) and present rules,
regulations and practices of the FCC, disqualify Buyer as an assignee of the
Licenses, or as an owner and/or operator of the Stations' Assets, and Buyer will
not take, or unreasonably fail to take, any action which
19
20
Buyer knows or has reason to know would cause such disqualification.
(d) Litigation. There is no action, litigation or other proceeding
pending or, so far as is known to Buyer, threatened against Buyer that would
affect Buyer's ability to carry out this Agreement.
(e) Brokerage. Buyer agrees to indemnify and hold harmless Sellers
against any loss, liability, damage, cost, claim or expense incurred by reason
of any brokerage, commission or finder's fee alleged to be payable because of
any act, omission or statement of the Buyer. No brokerage or finder has been
involved in this transaction or been engaged by Buyer.
(f) Financial Qualification. Buyer is, and as of the Closing Date
will be, financially qualified to enter into and undertake the performance of
the obligations set forth in this Agreement.
Section 7. Performance by Buyer. The obligations of Buyer hereunder
are subject to the following conditions, which conditions shall be waivable by
Buyer in its sole discretion:
(a) Representations and Warranties. The representations and
warranties of Sellers contained in this Agreement shall be true and correct at
the time of Closing hereunder as though made at and as of such time, and each
and all of the agreements of the Sellers to be performed on or prior to
20
21
the Closing hereunder pursuant to the terms of this Agreement shall have been
duly performed, and Sellers shall have delivered to Buyer certificates, dated as
of the Closing Date, to such effect reasonably acceptable in form and substance
to Buyer.
(b) Litigation, Etc. No litigation, action, suit, investigation or
proceeding of any kind shall have been instituted or threatened before any court
or governmental body, which would have a material adverse effect upon the
Stations' Assets.
(c) FCC Licenses. At the Closing, the Licenses shall be assigned and
transferred to Buyer, shall be valid for the full license term then currently
issued to the Stations, and shall contain no material adverse modifications of
the terms of any such License from the terms in effect as of the date of this
Agreement.
(d) Real Property. Sellers shall have delivered to Buyer real estate
leases and/or agreements duly executed for the real estate set forth at Schedule
1(a)(iv) in form reasonably satisfactory to counsel for Buyer.
(e) Legal Opinion. Buyer shall have received the respective written
opinions of corporate and communications counsel for Sellers, dated the Closing
Date, in form and content reasonably acceptable to counsel for Buyer and
collectively to the effect that:
21
22
(i) Sellers are organized and validly existing and in good
standing under the laws of the Commonwealth of Puerto Rico.
(ii) The Agreement has been duly authorized, executed and
delivered by Sellers and is the valid and binding obligation of Sellers,
enforceable against Sellers in accordance with its terms (subject to any
applicable bankruptcy, reorganization, insolvency or other laws, now or
hereafter in effect, affecting creditors' rights generally as well as all rights
in equity).
(iii) Neither the execution, delivery and performance of this
Agreement nor any instrument of sale required hereunder nor compliance by
Sellers with the terms and provisions of this Agreement will conflict with or
result in a breach of any of the terms, conditions or provisions of the Articles
of Incorporation of Sellers or any judgment, order or decree known to such
counsel, or any agreement known to such counsel other than an agreement listed
in Schedule 1(a)(vi). Such opinion, at the option of such counsel rendering the
opinion, may be in the form and be governed by and interpreted in accordance
with the Legal Opinion Accord of the ABA Section of Business Law (1991).
(e) Performance. Sellers shall have paid any and all taxes due and
owing all taxing authorities having jurisdiction over Sellers, its employees and
assets, and Sellers shall deliver certificates from its auditors confirming
same. Sellers shall
22
23
have performed and complied with all agreements, obligations and conditions
required by this Agreement to be performed or complied with by Sellers prior to
or at the Closing hereunder.
Section 8. Sellers' Performance. The obligations of Sellers
hereunder are subject to the following conditions, which conditions shall be
waivable by Sellers in their sole discretion:
(a) Payments, Etc. All payments hereunder which are due and payable
by Buyer on or before the Closing Date shall have been paid and delivered in
accordance with the terms of this Agreement, and Buyer shall have executed all
of the documents required of it herein.
(b) Representations and Warranties. Each of Buyer's representations
and warranties contained herein shall be true and correct at the time of
Closing, as though made at and as of such time, and Buyer shall have delivered
to Sellers certificates to that effect, dated as of the Closing Date, reasonably
acceptable in form and substance to Sellers.
(c) Performance. Buyer shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by Buyer prior to or at the Closing hereunder.
(d) Litigation. No litigation, investigation or proceeding of any
kind shall have been instituted or threatened before any court or governmental
body which would adversely
23
24
affect the ability of Buyer to comply in all material respects with the
provisions of this Agreement.
(e) Legal Opinion. Sellers shall have received an opinion of counsel
for Buyer, dated the Closing Date, in form and content reasonably acceptable to
Sellers' counsel to the effect that:
(i) Buyer is organized and validly existing and in good
standing under the laws of the Commonwealth of Puerto Rico.
(ii) The Agreement has been duly authorized, executed and
delivered by the Buyer, and duly ratified by Buyer's Board of Directors, and is
the valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms (subject to any applicable bankruptcy, reorganization,
insolvency or other laws, now or hereafter in effect, affecting creditors,
rights generally as well as all rights in equity).
(iii) Neither the execution, delivery and performance of this
Agreement nor compliance by Buyer with the terms of this Agreement will conflict
with or result in a breach of any of the terms, conditions or provisions of the
Certificate of Incorporation or By-Laws of Buyer or any judgment, order or
decree known to such counsel, or any material agreement known by such counsel to
which Buyer is subject. Such opinion, at the option of such counsel rendering
the opinion, may be in the form
24
25
and be governed by and interpreted in accordance with the Legal Opinion Accord
of the ABA Section of Business Law (1991).
Section 9. Rights of Indemnification.
(a) Except as specifically assumed by Buyer hereunder, it is
understood and agreed that Buyer does not assume and shall not be obligated to
pay, any liabilities of the Sellers under the terms of this Agreement, and
unless expressly provided for herein, it shall not be obligated to perform any
obligations of the Sellers, of any kind or manner. All representations,
warranties and agreements by Sellers shall survive the Closing for a period of
two (2) years from the date of Closing notwithstanding any investigation at any
time by or on behalf of Buyer. Sellers hereby agrees to indemnify and hold Buyer
and its successors and assigns (collectively, "Indemnified Parties" and
individually, an "Indemnified Party") harmless for a period of two (2) years
from the date of Closing from and against any and all damage, liability,
deficiency or expense (including, without limitation, reasonable attorney's
fees) arising out of or resulting from any material misrepresentation or breach
of warranty on the part of Sellers under this Agreement. Sellers hereby agree to
indemnify and hold Buyer and its successors and assigns (collectively,
"Indemnified Parties", and individually, an "Indemnified Party") for a period of
two (2) years from the date of Closing, harmless from and against:
25
26
(i) Any and all claims, liabilities and obligations, damages,
liability, deficiency or expense not expressly assumed by Buyer pursuant to this
Agreement, arising from or related to the Sellers' ownership or operation of the
Stations or the Stations' Assets prior to the Closing hereunder, including
without limitation, any claims arising in connection with any failure by Sellers
to pay or discharge any liability relating to the Stations that is not expressly
assumed by Buyer pursuant to the provisions of this Agreement;
(ii) Any and all damage, liability, deficiency or expense
(including, without limitation, reasonable attorneys' fees) arising out of all
third party disputes arising from or related to the Sellers' ownership or
operation of the Stations or the Stations' Assets prior to the Closing
hereunder.
(iii) Any and all fees, costs and expenses of any kind,
related or incident to any of the foregoing (including, without limitation,
reasonable legal fees and expenses).
(iv) Any and all severance pay or other employment related
payment required to be paid with respect to any employee of the Stations not
employed by Buyer or any liability or obligation arising under any employment
contract, assumed or not, relating to the payment of compensation, bonuses or
benefits accrued prior to the Closing Date.
26
27
(v) Notwithstanding the foregoing, Sellers shall have no
obligation to indemnify Buyer unless and until the aggregate amount of damages
exceeds Ten Thousand Dollars ($10,000) (the "Basket"), at which time
indemnification for the full amount of all damages (including the first $10,000)
shall be due; provided, however, that payments due or made in connection with
the prorations specified in Section 3 shall not be applied to the Basket.
(b) If any claim or liability shall be asserted against any
Indemnified Party which would give rise to a claim by such Indemnified Party
against Sellers for indemnification under the provisions of this Section, such
Indemnified Party shall promptly notify the Sellers in writing of the same
providing details of the claim and give all reasonable cooperation in the
defense thereof and the Sellers shall be entitled at its own expense to
compromise or defend any such claim provided. Failure to give prompt
notification shall not limit the Sellers' obligation except to the extent it is
actually prejudiced by the delay in notice.
(c) Buyer hereby agrees to indemnify and hold the Sellers and their
successors and assigns (collectively, "Indemnified Parties", and individually,
an "Indemnified Party"), for a period of two (2) years from the date of Closing,
harmless from and against:
27
28
(i) Any and all claims, liabilities and obligations, damages
or expenses arising from or related to the ownership or operation of the
Stations or the Stations' Assets subsequent to the Closing hereunder, including
claims from third parties; and
(ii) Any and all damage, liability, deficiency or expense
(including, without limitation, reasonable attorneys' fees) resulting from any
material misrepresentation or breach of warranty, or obligation of Buyer arising
under this Agreement.
(iii) Notwithstanding the foregoing, Buyer shall have no
obligation to indemnify Sellers unless and until the aggregate amount of damages
exceeds the Basket, at which time indemnification for the full amount of all
damages (including the amount of the Basket) shall be due; provided, however,
that payments due or made in connection with the prorations specified in Section
3 shall not be applied to the Basket.
(d) If any claim or liability shall be asserted against the Sellers
which would give rise to a claim by the Sellers against Buyer for
indemnification under the provisions of this Section, Sellers shall promptly
notify Buyer of the same and give all reasonable cooperation in the defense
thereof and Buyer shall be entitled at its own expense to compromise or defend
any such claim.
(e) Anything in this Section 9 to the contrary notwithstanding, the
indemnifying party shall not, without the
28
29
written consent of the Indemnified Party, settle or compromise any third party
claim or consent to the entry of judgment (i) which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
Indemnified Party of an unconditional release from all liability in respect of
the third party claim, or (ii) if there is a reasonable probability that a claim
may impose any non-monetary obligation upon the Indemnified Party.
(f) Except for specific performance of Sellers' obligation to
effectively and lawfully convey the Stations' Assets to Buyer as provided in
this Agreement, the right to indemnification hereunder shall be the exclusive
post-Closing remedy of any party in connection with or arising out of this
Agreement including, without limitation, any breach by another party of its
representations, warranties or covenants in this Agreement. SELLERS MAKE NO
REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND HEREBY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except for specific
performance of Sellers' obligation to effectively and lawfully convey the
Stations' Assets to Buyer as provided in this Agreement, each party hereby
releases and discharges the other party from any liability or claim with respect
to post-Closing remedies for which there is not an express indemnity under this
Agreement.
29
30
Section 10. Closing Indemnification Escrow Agreement. At the
Closing, Sellers shall pay to _______________ as Escrow Agent (the
"Indemnification Escrow Agent"), the sum of Four Hundred Thousand Dollars
($400,000.00) to be held and distributed pursuant to the terms of the Closing
Indemnification Escrow Agreement to be executed by and among Sellers, Buyer and
the Closing Indemnification Escrow Agent in the form of Exhibit A attached
hereto and made a part hereof.
Section 11. Risk of Loss. The risk of any loss, damage or
destruction to any of the Stations' Assets to be transferred hereunder from fire
or other casualty or cause shall be borne by the Sellers at all times prior to
the Closing Date hereunder. Subject to the provisions hereof, Buyer shall have
the option in the event the loss or damage exceeds Fifty Thousand Dollars
($50,000.00) and the property cannot be substantially repaired or restored
before the Closing Date, exercisable within ten (10) days after receipt of such
notice from Sellers to:
(i) Postpone the Closing until such time as the property has
been completely repaired, replaced or restored to Buyer's reasonable
satisfaction, unless the same cannot be reasonably effected within five (5)
months of notification, at which time Buyer may terminate this Agreement.
(ii) Elect to consummate the Closing and accept the property
in its "then" condition, in which event Sellers shall assign all rights under
any insurance claims covering the
30
31
loss and pay over (as part of the Stations' Assets) any proceeds under any such
insurance policy theretofore received by Sellers with respect thereto. Upon the
assignment of such insurance claims to Buyer, Sellers shall have no further
obligation to Buyer for any loss of value to the Stations' Assets. In the event
Buyer elects to postpone the Closing Date as provided in Subparagraph (i) above,
the parties hereto will cooperate and extend the time during which this
Agreement must be closed as specified in Section 4(a) hereof.
Section 12. Sellers' Performance at Closing. At the Closing
hereunder, the Sellers will:
(a) FCC Licenses. Deliver to Buyer assignments of all Licenses to
Buyer in customary form and substance.
(b) Personal Property. Deliver to Buyer a xxxx of sale and all other
appropriate documents and instruments in customary form and substance assigning
good title to all personal property being sold to Buyer pursuant to this
Agreement, free and clear of any liens, charges, claims or encumbrances of any
kind.
(c) Real Property. Deliver to Buyer all appropriate documents and
instruments to vest in Buyer as lessee or usee real estate leases and/or use
agreements in form reasonably satisfactory to counsel for Buyer.
(d) Assignment of Agreements. Except as qualified in Section
5(b)(1), deliver to Buyer such assignments and further instruments of transfer
as Buyer may reasonably require to
31
32
effectuate the assignment to it of those Stations contracts, leases and
agreements to be assigned to it as set forth on Schedule 1 (a)(vi) to this
Agreement, as may be updated relative to contracts, leases and agreements as may
be entered into by Sellers in the ordinary and customary course of business
between the date hereof and the Closing Date with Buyer's reasonable consent,
not to be unreasonably withheld.
(e) Adjustments and Payment. If the adjustments and assumptions
provided for in Section 3 result in a net amount owing by the Sellers to Buyer,
deliver a cashier's check or wire transfer to Buyer for such amount at the
Closing.
(f) Opinions. Deliver to Buyer the written opinions of Sellers'
respective corporate and communications counsel, dated as of the Closing Date,
pursuant to the provisions of this Agreement.
(g) Officer's Certificate. Deliver to Buyer its certificate
attesting to the accuracy of all representations and warranties and due
performance of all obligations.
(h) Originals. Deliver to Buyer the originals, if available, of all
contracts, leases, agreements, commitments and trademark and copyright
registrations to be assigned to Buyer under this Agreement.
(i) Resolutions. Deliver to Buyer certified resolutions of Sellers'
directors and stockholders authorizing Sellers to enter into this Agreement.
32
33
(j) Closing Indemnification Agreement. Deliver, execute and fund the
Closing Indemnification Agreement attached hereto as Exhibit A.
(k) Other Documents. Deliver to Buyer such other documents as
counsel for Buyer may reasonably request for the purpose of consummating the
transactions described herein.
Section 13. Buyer's Performance at Closing. At the Closing:
(a) Payment. Buyer will deliver to Sellers by confirmed wire
transfer, the monies payable at the Closing as set forth in the appropriate
provisions of Section 2 hereof.
(b) Adjustments and Payment. Buyer will, if the adjustments and
assumptions provided for in Section 3 hereof result in a net amount owing to the
Sellers by Buyer, deliver a cashier's check or wire transfer to Sellers for such
amount at the Closing.
(c) Opinion. Deliver the written opinion of its counsel, dated as of
the Closing Date, pursuant to the provisions of this Agreement.
(d) Officer's Certificate. Deliver to Sellers its certificate
attesting to the accuracy of all of Buyer's representations and warranties and
due performance of all obligations.
(e) Assumptions. Buyer shall deliver to Sellers such assumption
agreements and other documents in form and substance
33
34
reasonably satisfactory to Sellers as are required to make, confirm and evidence
Buyer's assumption of and obligation to pay, perform, or discharge Sellers'
obligations under those contracts to be assumed by Buyer pursuant to this
Agreement.
(f) Resolutions. Buyer shall deliver certified resolutions of
Buyer's directors and stockholders authorizing Buyer to enter into this
Agreement.
(g) Certificate. Buyer shall deliver a Certificate of Good Standing
from the Commonwealth of Puerto Rico, dated not more than five (5) business days
prior to the Closing Date.
(h) Closing Indemnification Agreement. Buyer shall execute and
deliver the Closing Indemnification Agreement attached hereto as Exhibit A.
(i) Other Documents. Deliver to the Sellers such other documents as
counsel for Sellers may reasonably request for the purpose of consummating the
transactions described herein.
Section 14. Default and Remedies.
(a) Breach and Opportunity to Cure. If either party believes the
other to be in default hereunder, the nondefaulting party shall provide the
defaulting party with notice specifying in reasonable detail the nature of such
default. If such default has not been cured by the earlier of: (i) the Closing
Date, or (ii) within twenty (20) days after delivery of such notice (a "Default
Notice"), then the party giving such notice may (x) terminate this Agreement,
provided it or they is/are not in
34
35
material default as provided herein, (y) extend the Closing Date under Section 4
(but no such extension shall constitute a waiver of such nondefaulting party's
right to terminate as a result of such default), and/or (z) exercise the
remedies available to such party pursuant to Section 14(b) or 14(c), subject to
the right of the other party to contest such action through appropriate
proceedings.
(b) Sellers' Remedies. Buyer recognizes that if, as a result of
Buyer's default, the transactions contemplated hereby are not consummated,
Sellers would be entitled to compensation, the extent of which is extremely
difficult and impractical to ascertain. The parties, therefore, agree that if
this Agreement is not consummated due to the material default of Buyer (any
failure on Buyer's part to consummate in accordance with its obligations under
this Agreement being deemed "material"), provided that Sellers is not in
material default, Sellers shall be entitled to liquidated damages in the amount
of $250,000 which shall be Sellers sole and exclusive remedy and shall be in
lieu of any and all other relief to which Sellers might otherwise be entitled
due to Buyer's failure to consummate, or default under, this Agreement.
(c) Buyer's Remedies. Sellers agree that the Stations' Assets
include unique property that cannot be readily obtained on the open market and
that Buyer would be irreparably injured if this Agreement is not specifically
enforced after
35
36
default. Therefore, Buyer shall have the right to specifically enforce Sellers'
performance under this Agreement providing Buyer is not materially in default,
and Sellers agree to waive the defense in any such suit that Buyer has an
adequate remedy at law and to interpose no opposition, legal or otherwise, as to
the propriety of specific performance as a remedy. In the event Buyer elects to
terminate this Agreement as a result of Sellers' material default instead of
seeking specific performance providing that Buyer is not materially in default
(the remedies being alternative, not cumulative), Buyer shall be entitled to
bring an action for liquidated damages in the amount of $250,000 which shall be
Buyer's sole and exclusive remedy and shall be in lieu of any and all other
relief to which Buyer might otherwise be entitled due to Sellers' failure to
consummate, or default under, this Agreement.
Section 15. Termination.
(a) Absence of Commission Consent or Court Approval. This Agreement
may be terminated at the option of either party upon notice to the other if the
FCC consent has not become a final order by September 30, 1999; provided,
however, that a party may not terminate this Agreement if (i) such party's
action, inaction or qualifications, has caused, or materially contributed to, a
delay in any decision or determination by the FCC, or (ii) the party seeking to
terminate the Agreement pursuant to this Section 15(a) is in material default
hereunder.
36
37
(b) Designation for Hearing. The provisions of Section 15(a)
notwithstanding, either party may terminate this Agreement upon notice to the
other, if, for any reason, the assignment application is designated for hearing
by the FCC, unless such designation for hearing arises from, is based upon, or
relates to the action, inaction or qualifications of the party seeking to
terminate, in which case such party shall have no right of termination;
provided, however, that notice of termination must be given within twenty (20)
days after release of the hearing designation order.
(c) Legal Actions. If, prior to the Closing Date, any action, suit,
or proceeding shall have been instituted by or before any court or other
governmental authority (other than the FCC) to enjoin, restrain, or prohibit the
consummation of the transactions contemplated hereby, the Closing may be
adjourned at the option of either party (with prior consent of the FCC if
necessary, which consent both parties will use their reasonable best efforts to
obtain), for a period of up to ninety (90) days, and if, at the end of such
period, the action, suit, or proceeding shall not have been favorably resolved,
either party may, by written notice to the other, terminate this Agreement,
provided, however, that if such action, suit, or proceeding shall have been
solicited or encouraged by, or instituted as a result of, any act or omission
of, Sellers or Buyer, then such party
37
38
shall not have any right of adjournment or termination pursuant to this Section.
(d) In addition, this Agreement may be terminated at any time on or
prior to the Closing Date: (i) by the mutual written consent of Sellers and
Buyer; or (ii) by any non-defaulting party hereto if within seven (7) business
days after the date hereof, an application for FCC consent to the assignment of
the FCC Licenses to Buyer and the consummation of the transactions contemplated
by this Agreement that is acceptable for filing, subject to reasonable
supplementation and modification, has not been tendered for filing with the FCC
(provided that the non-defaulting party shall have used all reasonable efforts
to cooperate in the preparation of such application). A termination pursuant to
this Section 15 shall not relieve any party of any liability it may otherwise
have for a breach of this Agreement.
Section 16. Sales and Transfer Taxes and Fees. All stamps, fees and
costs for the transfer and sale of the Real Property shall be paid consistent
with Puerto Rico custom and practice.
Section 17. Survival of Representations and Warranties. The several
representations and warranties of the parties contained herein shall survive the
Closing for a period of one (1) year; provided, however, that the
representations and warranties set forth in Section 9(a)(iv) (obligations to
38
39
employees), in Section 5(h) (Environmental), and 5(j) (Taxes), shall survive the
Closing until the expiration of the applicable statute of limitations, as may be
extended by waiver of the party which made the subject representation and/or
warranty or interruption thereof in accordance with applicable law, as the case
may be.
Section 18. Public Announcements.
(a) Prior to the Closing Date, no party shall, without the approval
of the other party hereto, make any press release or other public announcement
concerning the transactions contemplated by this Agreement, except as and to the
extent that such party shall be so obligated by law, in which case such party
shall give advance notice to the other party and the parties shall use their
best efforts to cause a mutually agreeable release or announcement to be issued.
Nothing in this Agreement shall be construed to limit Sellers' normal duty to
publish all announcements required by the FCC and to make the filings with the
FCC contemplated by this Agreement.
(b) Notwithstanding the foregoing, the parties acknowledge that the
rules and regulations of the FCC require that public notice of the transactions
contemplated by this Agreement be made after the application for the FCC's
consent has been filed with the FCC. The form and substance of such public
notice, to the extent not dictated by the Communications Act or
39
40
the rules and regulations of the FCC, shall be mutually agreed upon by Sellers
and Buyer.
Section 19. Miscellaneous.
(a) Schedules and Exhibits. All schedules and exhibits attached to
this Agreement (and all other documents referred to therein) shall be deemed
part of this Agreement and incorporated herein, where applicable, as if fully
set forth herein.
(b) No Assignment, Successors, Assigns, Etc. This Agreement shall
not be assigned or conveyed by any party hereto to any other person or entity
without the prior written consent of the other parties hereto, except that Buyer
may assign this Agreement and the rights and obligations hereunder to any of its
affiliates which will not release Buyer from any of the obligations and
undertakings provided for herein, and except that Sellers may assign their
rights and duties to a commonly-controlled entity, which assignment will not
release Sellers from any of its obligations and undertakings provided for
herein.
(c) Construction. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Puerto Rico.
(d) Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
40
41
(e) Notices. Any notice or other communications shall be in writing
and shall be considered to have been duly given when personally delivered or
deposited into first class certified mail, postage prepaid, return receipt
requested:
(i) If to the Buyer to:
Spanish Broadcasting System
of Puerto Rico, Inc.
c/o 0000 Xxxxx Xxx Xxxxx 000
Xxxxx, Xxxxxxx 00000
ATTN: Xxxx Xxxxxxx, Xx., President
cc: Xxxxx X. Xxxxxxxx, Esq.
Xxxx, Scholer, Fierman, Xxxx
& Handler, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
(ii) If to Sellers to:
LaMega Estacion, Inc.
Guayama Broadcasting Company, Inc.
Xxxxxx'x Plaza - Suite 102
0000 Xxxxx xx Xxxx Xxx
Xxxxxxxx, Xxxxxx Xxxx 00000
ATTN: Xxxx Xxxx Xxxxxx
cc: Xxxxxxx Xxxxx, Xx., Esq.
Munoz, Boneta, Gonzalez, Arbona,
Xxxxxxx & Peral
208 Xxxxx de Xxxx Avenue, Popular Centre
Xxxxx 0000
Xxxx Xxx, Xxxxxx Xxxx 00000-0000
(g) Integration. Except as herein expressly provided, this Agreement
embodies the entire agreement and understanding among Sellers and Buyer, and
supersedes all prior agreements and
41
42
understandings, whether oral or in writing, with respect to the purchase and
sale of the Stations' Assets.
(h) Amendment. This Agreement shall not be amended or modified in
any manner except by a written document executed by the party or parties against
whom enforcement of such amendment or modification may be sought.
(i) Confidentiality. Buyer and Sellers agree that each will use its
best efforts to keep confidential all of the information of a business or
confidential nature obtained by it from the other (including, but not limited
to, the identity of Buyer, the proposed terms of this Agreement, and information
pertaining to Sellers, whether related to the Stations or otherwise; and, in the
event that the transactions contemplated herein are not consummated, in addition
to the other continuing obligations of the parties which shall survive the term
of this Agreement, the duties and obligations of the parties and their
respective agents and confidants shall continue for a term of twelve (12) months
from its termination regarding maintaining confidentiality as herein above set
forth; and, further, each of the parties will return to the other all documents,
copies and other materials obtained from the other in connection therewith. This
Section shall not prevent either party from disclosing such confidential
information to their respective attorneys, bankers, underwriters or investors as
may be appropriate in furtherance of this transaction (provided, however, such
party shall similarly
42
43
be bound by this confidentiality provision) or to comply with any governmental
policy, regulation or law.
(j) Severability. If any one or more of the provisions contained in
this Agreement should be found invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. Any illegal or
unenforceable term shall be deemed to be void and of no force and effect only to
the minimum extent necessary to bring such term within the provisions of
applicable law and such term, as so modified, and the balance of this Agreement
shall then be fully enforceable.
43
44
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed through their duly authorized officers on the day and year first
above written.
SPANISH BROADCASTING SYSTEM OF
OF PUERTO RICO, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice-President
GUAYAMA BROADCASTING COMPANY, INC.
By: /s/ Xxxx Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxx Xxxxxx
Title: President
LaMEGA ESTACION, INC.
By: /s/ Xxxx Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxx Xxxxxx
Title: President
44
45
LIST OF SCHEDULES & EXHIBITS
Schedule 1(a)(i) Licenses & Authorizations Page 2
Schedule 1(a)(iii) Personal Property Page 3
Schedule 1(a)(iv) Real Property Page 3
Schedule 1(a)(vi) Contracts, Leases & Agreements Page 4
Schedule 1(e) Trade Agreements Page 6
Schedule 5(b)(i) Material Agreements Page 14
Exhibit A Closing Indemnification Escrow Agreement
45
46
SCHEDULE 1(a)(vi)
CONTRACTS, LEASES AND AGREEMENTS
1. Lease Agreement by and between Juba Realty, Inc., as lessor, and Guayama
Broadcasting Corp. as lessee, dated Jan 26, 1997, as amended.
2. LMA by and between Guayama Broadcasting Co., Inc. and HQ 103, Inc. dated
July 23, 1997.
3. Arbitron Agreement dated October 31, 1997, as amended October 21, 1998.
Audience Measurement Agreement maximiSer.
EMPLOYMENT CONTRACTS
A. Guayama Broadcasting Corp. and Xxxxxx Xxxxxx Xxxxxxxx dated 4/2/97.
B. Guayama Broadcasting Co., Inc. and Xxxxxx Xxxxxx Xxxxxxxxx dated 2/18/97.
C. Guayama Broadcasting Co., Inc. and Xxxxxxxx X. Xxxxxxxx dated 3/2/98.
D. Guayama Broadcasting Co., Inc. and Xxxxxxx Xxxxx Xxxxxxx dated 2/17/98.
E. Guayama Broadcasting Co., Inc. and Xxx Xxxx Xxxxxxx dated 11/1/97.
F. Guayama Broadcasting Co., Inc. and Xxxxxx del Xxxxxxxx (no date).
G. Guayama Broadcasting Corp. and Xxxxxx Xxxxxxx xx Xxxxxxxxx dated 2/18/97.
H. Guayama Broadcasting Corp. and Xxxxxx Xxxxxx Xxxxxxxx dated 4/2/97.
I Guayama Broadcasting Co., Inc. and Xxxx Xxxxxxxxx Xxxxxxxx dated 8/5/96.
46
