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EXHIBIT 2.5.16
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made as
of January 2, 1997 among Clear Channel Radio, Inc., a Nevada corporation
("Assignor"), Heftel Broadcasting Corporation, a Delaware corporation
("Assignee") and Xxxxxxxx Media System, Inc., a Texas corporation ("Xxxxxxxx").
Recitals
Assignor and Golden West Broadcasters, a California corporation ("GWB"),
are parties to an Option Agreement (the "Option Agreement") and a Time
Brokerage Agreement (the "TBA"), both dated December 23, 1996, with respect to
radio station KSCA(FM), Glendale, California (the "Station"). The Option
Agreement provides for execution of the Purchase Agreement attached thereto
(the "Purchase Agreement") upon exercise of the Option under the Option
Agreement. The Option Agreement, Purchase Agreement and TBA are referred to
herein collectively as the "Transaction Documents." Xxxxxxxx and Clear Channel
Communications, Inc., a Texas corporation ("Clear Channel") are parties to an
Agreement and Plan of Merger dated July 9, 1996 with respect to Assignee.
Assignee and Xxxxxxxx desire Assignor to assign and delegate to Assignee the
Transaction Documents. This Agreement contains certain representations,
warranties, indemnities, releases, covenants and agreements of Assignee and
consents and approvals of Xxxxxxxx without which Assignor would not assign or
delegate the Transaction Documents to Assignee.
Agreement
NOW, THEREFORE, taking the foregoing recitals into account, and in
consideration of the mutual agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and confirmed, the parties agree as follows:
1. Assignment and Assumption. Assignor hereby assigns and delegates
to Assignee the Transaction Documents and all Assignor's rights and obligations
thereunder. Assignee hereby accepts the foregoing assignment and delegation
and assumes all obligations of Assignor under the Transaction Documents. On
the date hereof, Assignee shall pay to Assignor an amount equal to (i) $10
million (being the amount of all payments made by Assignor under the Option
Agreement) plus (ii) $_____________ being the amount of all payments made by
Assignor under the TBA.
2. Representations and Warranties. Assignee represents and warrants
to Assignor that all representations and warranties of Assignor under the
Transaction Documents are true and correct with respect to Assignee as though
made by Assignee (except that Assignee is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware rather
than Nevada). Assignee acknowledges and agrees that the
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assignment and delegation hereunder is made without representation or warranty
by, and without recourse to, Assignor.
3. Covenants. Notwithstanding anything to the contrary set forth in
the Transaction Documents (including Section 15 of the Option Agreement,
Section 18(b) of the TBA and Section 15.2 of the Purchase Agreement), as
between Assignor and Assignee, Assignor shall have no obligations under the
Transaction Documents and Assignee shall be responsible for the payment and
performance of all obligations thereunder. Assignee shall timely pay and
perform all obligations of Assignor under the Transaction Documents and shall
otherwise fully comply with the terms thereof. Assignor may, but shall not be
obligated to, from time to time pay or perform any obligation under any of the
Transaction Documents at Assignee's cost and expense. Assignee shall pay to
Assignor on demand all costs and expenses incurred by Assignor in paying or
performing any such obligations. Assignee covenants and agrees that, without
the prior written consent of Assignor (which consent Assignor may withhold in
its sole and absolute discretion), Assignee shall not (i) exercise the Option
under the Option Agreement or (ii) assign or delegate any of the Transaction
Documents or any rights or obligations thereunder or (iii) modify, amend or
terminate any of the Transaction Documents. Assignee shall (i) deliver to
Assignor copies of all notices, demands and other communications given or
received under the Transaction Documents at the same time such notices, demands
and communications are given or received by Assignee and (ii) otherwise keep
Assignor informed regarding all matters relating to the Transaction Documents.
4. Indemnification and Release. Assignee shall indemnify, defend
and hold harmless Assignor and Clear Channel and their respective directors,
officers, employees, agents, successors and assigns (each an "Indemnified
Person") from and against any and all claims, demands, actions, suits,
proceedings, losses, damages, liabilities, obligations, costs and expenses
(including without limitation reasonable attorneys' fees) of whatsoever kind or
nature (collectively "Claims") which may be imposed on, incurred by or asserted
against any Indemnified Person that directly or indirectly arise or result from
or are attributable to any of the Transaction Documents or the execution,
delivery or performance (or non-performance) thereof, including without
limitation any failure by Assignee to comply with the terms thereof, but
excluding Claims that arise or result solely from the gross negligence or
willful misconduct of Assignor. Assignee hereby releases each Indemnified
Person from any and all Claims which Assignee may now or hereafter have,
whether known or unknown, that directly or indirectly arise or result from or
are attributable to any of the Transaction Documents or the execution, delivery
or performance (or non-performance) thereof.
5. Remedies. In addition to any other rights and remedies of
Assignor, in the event of a failure by Assignee to comply with the terms of
this Agreement or any of the Transaction Documents or if any representation or
warranty of Assignee hereunder or thereunder is or becomes untrue, at
Assignor's option, the Transaction Documents and all rights thereunder shall be
assigned by Assignee to Assignor or Assignor's designee. Assignee hereby
assigns the Transaction Documents and all rights thereunder to Assignor or
Assignor's designee effective upon any exercise by Assignor of such option, it
being the intent of the
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parties that any such assignment shall occur upon written notice thereof given
by Assignor to Assignee, without need for any further act by Assignor or
Assignee. Assignee shall execute and deliver all documents and agreements and
take all other actions necessary to fully effectuate any such assignment upon
Assignor's exercise of such option, and Assignee hereby irrevocably appoints
Assignor as Assignee's attorney-in-fact to execute and deliver all such
documents and agreements and take all such actions on behalf of Assignee.
6. Consent and Approval. Xxxxxxxx hereby irrevocably consents to,
authorizes and approves, the execution, delivery and performance of this
Agreement by Assignee, including without limitation the assumption and
performance by Assignee of the Transaction Documents and the consummation by
Assignee of the transactions contemplated by this Agreement and the Transaction
Documents. Nothing in this Agreement shall be deemed an assumption by TMS of
any obligations or liabilities under any of the Transaction Documents.
7. Miscellaneous.
(a) Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but which together
shall constitute one agreement.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Texas,
without giving effect to principles of conflicts of laws.
(c) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in a manner as to be valid under applicable law,
but if any provision of this Agreement shall be held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or any other provision of this Agreement.
(d) Attorneys' Fees. In the event of any action or proceeding
at law or in equity to enforce any provision of this Agreement (including an
action for declaratory relief) or based on or arising out of any alleged breach
of any provision of this Agreement, or otherwise in connection with this
Agreement or any provision hereof, the prevailing party shall be entitled to
recover from the losing party or parties reasonable attorneys' fees and other
costs of such action or proceeding.
(e) Amendments and Waivers. This Agreement may not be amended
except by an instrument in writing signed by each of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall any such waiver constitute a continuing waiver. No waiver of any
provision of this Agreement shall be binding unless executed in writing by the
party making the waiver.
(f) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors
and any permitted assigns.
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Neither Assignee nor Xxxxxxxx may assign or delegate this Agreement or any
rights or obligations hereunder, except as expressly set forth herein.
(g) Third Party Beneficiaries. Except that Clear Channel and
each other Indemnified Person is an intended beneficiary of this Agreement,
nothing herein is intended or shall be construed to confer upon or give to any
person or entity other than the parties hereto and their successors and any
permitted assigns, any rights or remedies under or by reason of this Agreement.
(h) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto relating to the matters
provided for herein and supersedes any and all prior agreements, arrangements,
negotiations, discussions and understandings relating to the matters provided
for herein.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO KSCA(FM)
ASSIGNMENT AND ASSUMPTION AGREEMENT
IN WITNESS WHEREOF, Assignor, Assignee and Xxxxxxxx have executed this
Agreement as of the date first set forth above.
ASSIGNOR: CLEAR CHANNEL RADIO, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
ASSIGNEE: HEFTEL BROADCASTING CORPORATION
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXXX: XXXXXXXX MEDIA SYSTEM, INC.
By: /s/ XxXXXXX X. XXXXXXXX, XX.
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Name: XxXxxxx X. Xxxxxxxx, Xx.
Title: President
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