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EXHIBIT 10.28.3
CAPSTAR ACQUISITION COMPANY, INC.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(512) 404-6800
July 6, 1998
Mr. R. Xxxxxx Xxxxx
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Re: Letter Agreement for the purchase of CONSTRUCTION PERMIT FOR
NEW FM RADIO STATION IN ROUND ROCK, TEXAS
Dear Xx. Xxxxx:
This letter agreement (this "Agreement") contains the terms and
conditions upon which Capstar Acquisition Company, Inc., a Delaware corporation
("Buyer"), is willing to acquire that certain construction permit issued by the
Federal Communications Commission ("FCC") for the construction of a new FM radio
station on Channel 2092C in ROUND ROCK, TEXAS (the "Station"), from you in your
individual capacity ("Seller"):
1. Assets. On the date (the "Closing Date") of the consummation of the
transactions contemplated by this Agreement (the "Closing"), Buyer shall
purchase from Seller, and Seller shall sell to Buyer, substantially all of the
assets, properties, interests and rights of Seller, real and personal, tangible
and intangible, owned or leased by Seller which are used or held for use in the
operation of the Station including, but not limited to, all the following: (a)
licenses, permits and authorizations of any governmental authority, including
the FCC, which FCC licenses, permits and authorizations are listed on Schedule
6(c) hereto; (b) all documents, files, books and records, including the local
public file; (c) all contracts and agreements (including lease agreements)
listed on Schedule 1-A hereto (the "Assumed Contracts"); and (d) goodwill
related to the Station. The assets conveyed (the "Assets") will include all
replacements and additions thereto between the date of this Agreement and the
Closing Date. Seller agrees that it shall convey the Assets to Buyer free and
clear of all liens, pledges, voting agreements, voting trusts, proxy agreements,
claims, security interests, restrictions, mortgages, deeds of trust, tenancies,
and other possessory interests, conditional sale or other title retention
agreements, assessments, easements, rights of way, covenants, restrictions,
rights of first refusal, defects in title, encroachments, and other burdens,
options or encumbrances of any kind (collectively, "Liens"). Schedule 1-A
identifies, as to each Assumed Contract listed thereon, whether (A) the consent
of the other party thereto is required, (B) notice must be given to the other
party (including when such notice must be given), or (C) any payment is required
(including the amount thereof), in order for such Assumed Contract to continue
in full force and effect upon the consummation of the transactions contemplated
hereby, or (D) whether such Assumed Contract can be canceled by the other party
without liability to such other party due to the consummation of the
transactions contemplated hereby.
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2. Purchase Price. The total purchase price for the Assets (the
"Purchase Price") will be $8,500,000. The purchase price will be satisfied by
the termination by Buyer of the letter of credit reimbursement obligations owing
from Seller to Buyer in an aggregate principal amount of $8,500,000 at the
Closing.
3. Assumption of Liabilities and Obligations. As of the Closing Date,
Buyer shall assume and undertake to pay, discharge and perform all the
obligations and liabilities of Seller relating to the Station under the Assumed
Contracts relating to the time period beginning on or arising out of events
occurring on or after the Closing Date. All other obligations and liabilities of
Seller, including (i) obligations or liabilities under any contract not included
in the Assumed Contracts, (ii) obligations or liabilities under any Assumed
Contract for which a consent to assignment, if required, has not been obtained
as of the Closing Date, (iii) any obligations and liabilities arising under the
Assumed Contracts that relate to the time period prior to the Closing Date and
(iv) any forfeiture, claim or pending litigation or proceeding relating to the
business or operations of the Station prior to the Closing Date, shall remain
and be the obligation and liability solely of Seller. Other than as specified in
the first sentence of this paragraph 3, Buyer, directly or indirectly, shall
assume no liabilities or obligations of Seller and shall not be liable therefor.
4. FCC and Closing. Within ten days after the execution of this
Agreement, Buyer and Seller will file an application with the FCC seeking
consent for the sale of the Station contemplated hereby. Such consent by the
FCC, together with consent by the FCC to any pending renewal application with
respect to the Station's FCC licenses, shall be hereinafter referred to as the
"FCC Consents." Seller shall comply with all FCC rules and requirements
regarding local public notice in a timely manner and, upon completion of the
publication of local notice, shall provide to Buyer a copy of such notice with a
statement listing the times at which such notice was broadcast on the Station.
Subject to the satisfaction or waiver of the conditions contained in this
Agreement, the Closing will take place at the offices of Buyer in Austin, Texas,
at 10:00 a.m., local time, on the 10th business day after the day on which the
initial grant of all FCC Consents (the "Initial Grant") has become a Final Order
(as hereinafter defined). At the election of Buyer, the receipt of a Final Order
may be waived, and in such case the Closing will occur after the Initial Grant
on a date selected by Buyer on at least five business days' prior notice to
Seller. "Final Order" means the written action or order issued by the FCC
setting forth the FCC Consents (without the inclusion of any adverse conditions
affecting Buyer's operation or ownership of the Station) and (a) which has not
been reversed, stayed, enjoined, set aside, annulled or suspended and (b) with
respect to which (i) no requests have been filed for administrative or judicial
review, reconsideration, appeal or stay, and the time for filing any such
requests and for the FCC to set aside the action on its own motion has expired,
or (ii) in the event of review, reconsideration or appeal, such review,
reconsideration or appeal has been denied and the time for further review,
reconsideration or appeal has expired. At the Closing, Buyer and
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Seller, as applicable, shall enter into a Xxxx of Sale and an Assignment and
Assumption Agreement and such other documents, instruments and certificates
required pursuant to this Agreement or as reasonably requested by Buyer or
Seller to effect the transactions contemplated hereby.
5. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
(a) Organization; Authority. Buyer is a corporation duly organized,
validly existing and in good standing in the state of its incorporation
and has all necessary corporate power and authority to execute this
Agreement and the other documents to be executed by it in connection
herewith (collectively with this Agreement, "Buyer's Agreements") and
to consummate the transactions contemplated hereby and thereby. Buyer's
execution, delivery and performance of Buyer's Agreements and the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary action on its part and, assuming the due
execution and delivery of Seller's Agreements (as hereinafter defined)
by Seller, will constitute the valid and binding obligation of Buyer,
enforceable against Buyer in accordance with their respective terms,
except as limited by laws affecting creditors' rights or equitable
principles generally.
(b) Required Filings and Consents. Except for the FCC Consents, the
execution, delivery and performance of Buyer's Agreements by Buyer does
not require the consent of a governmental entity or a third party not
affiliated with Buyer.
6. Representations and Warranties of Seller. Seller hereby represents
and warrants to Buyer as follows:
(a) Organization; Authority. Seller has all necessary power and
authority to execute this Agreement and the other documents to be
executed by it in connection herewith (collectively with this
Agreement, "Seller's Agreements") and to consummate the transactions
contemplated hereby and thereby. Seller's execution, delivery and
performance of Seller's Agreements and the transactions contemplated
hereby and thereby have been duly and validly authorized by all
necessary action on its part and, assuming the due execution and
delivery of Buyer's Agreements by Buyer, will constitute the valid and
binding obligations of Seller, enforceable against Seller in accordance
with their respective terms, except as limited by laws affecting
creditors' rights or equitable principles generally.
(b) No Conflicts; Required Filings and Consents Except for the FCC
Consents, the execution, delivery and performance of Seller's
Agreements by Seller (i) does not require the consent of any
governmental entity or third party, (ii) will not conflict with or
violate any applicable law or any judgment, order or ruling of any
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government authority having jurisdiction over Seller, (iii) will not,
directly or indirectly, conflict with or constitute a breach or default
under any agreement, document, instrument, license or permit to which
Seller is a party or is subject, and (iv) will not result in the
creation of any Lien on the Assets.
(c) Licenses; FCC Matters. Seller is the authorized legal holder of
all licenses, permits and authorizations from governmental and
regulatory authorities which are issued and currently required for the
lawful operation of the Station and all of such licenses, permits or
authorizations, including all licenses, permits and authorizations
issued by the FCC, are in full force and effect, are not subject to any
restrictions or conditions limiting or restricting the full operation
of the Station and are listed on Schedule 6(c) hereto. There are no
pending or, to the best knowledge of Seller, threatened proceedings
which could result in the revocation, modification or nonrenewal of
such licenses, permits and authorizations and Seller has no reason to
believe that such licenses, permits and authorizations will not be
renewed in their ordinary course. To the best knowledge of Seller,
there are no facts which would disqualify Seller as assignor of any FCC
license for the Station.
(d) Compliance with Applicable Law. Seller is in compliance with
all laws, regulations, rules and governmental orders applicable to the
Station and the Assets, and, to Seller's knowledge, Seller has not
violated such laws, regulations, rules or governmental orders in
connection with the Station, and no such violations have occurred which
would affect Seller's ability to perform its obligations hereunder.
(e) Absence of Litigation. Seller is not subject to any judgment,
injunction, grievance, order or arbitration decision relating to the
Assets or the Station, and there is no litigation or administrative
proceeding pending or, to the best of Seller's knowledge, threatened
against Seller or the Station relating to the Assets or which would
affect Seller's ability to perform its obligations hereunder.
(f) Liens; Assumed Contracts. Seller owns and has, and following
the Closing Buyer will have, good and marketable title to the Assets,
which Assets include all personal property necessary to construct the
broadcast tower and begin the business and operations of the Station.
Each of the Assumed Contracts (including each lease or sublease) is a
valid and binding obligation of Seller and is in full force and effect,
and Seller is not, and, to the knowledge of Seller, no other party is,
in default in any material respect under such Assumed Contracts
(including each lease or sublease). No person other than Seller has any
interest in any of the Assets. The Assets are free and clear of all
Liens.
(g) Personal Property. All of the personal property to be
transferred to Buyer
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is in good and technically sound operating condition and repair, normal
wear and tear excepted, complies in all material respects with the
rules of the FCC and the FCC licenses for the Station, is sufficient to
operate the Stations in material compliance with the rules of the FCC
and the FCC licenses, is suitable for the purposes for which it is now
being used and has been maintained in a manner consistent with
generally accepted standards of good engineering practice.
(h) Disclosure. No representation or warranty made by Seller
and contained in this Agreement or in any exhibit, schedule, written
statement, certificate or other document delivered or to be delivered
by Seller pursuant to this Agreement or in connection with the
consummation of the transactions contemplated hereby contains any
untrue statement of a material fact or omits any material fact required
to make any statement contained herein or therein not misleading.
Seller is not aware of any impending or contemplated event or
occurrence that would cause any of the foregoing representations not to
be true and complete on the date of such event or occurrence as if made
on that date.
7. Certain Buyer Covenants. Buyer hereby makes the following covenants
to Seller:
(a) Buyer shall notify Seller of any litigation or
administrative proceeding pending or, to Buyer's best knowledge,
threatened against Buyer that challenges the transactions contemplated
hereby; and
(b) Buyer shall not, directly or indirectly, control,
supervise or direct the operations of the Station, and such control,
supervision and direction shall remain and shall be the sole
responsibility of Seller.
8. Certain Seller Covenants. Seller hereby makes the following
covenants to Buyer:
(a) Seller shall operate the Station in all material respects in
accordance with the FCC license for the Station and all laws,
regulations and rules applicable to the Station; provided that Seller
is under no obligation to begin operation of the Station prior to the
Closing;
(b) Seller shall not knowingly take any action that would cause any
representation or warranty contained herein to become false or invalid,
and Seller shall notify Buyer of any change in any of Seller's
representations and warranties contained herein; provided, however,
that such notice shall not operate to cure any breach of such
representations or warranties;
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(c) Seller shall not knowingly take any action which is materially
inconsistent with Seller's obligations under this Agreement;
(d) Seller shall notify Buyer of any litigation or administrative
proceeding or investigation pending or, to Seller's best knowledge,
threatened which challenges the transactions contemplated hereby;
9. Certain Conditions to Buyer's Obligations. Buyer and Seller agree
that Buyer's obligations hereunder are specifically conditioned upon the prior
occurrence of the following unless waived, in whole or in part, by Buyer:
(a) The representations and warranties of Seller in this Agreement
shall be true and correct in all material respects (provided that any
representation or warranty contained herein that is qualified by a
materiality or material adverse effect qualification shall not be
further qualified hereby) as of the Closing Date;
(b) Seller shall have performed all obligations under its covenants
and agreements in this Agreement, in all material respects (provided
that any covenant or agreement contained herein that is qualified by a
materiality or material adverse effect qualification shall not be
further qualified hereby), before the Closing Date.
(c) All instruments of conveyance and transfer and other documents
delivered by Seller to effect the sale, transfer and conveyance of the
Assets to Buyer shall be satisfactory in form and substance to Buyer
and its counsel;
(d) No litigation or administrative proceeding or investigation
(whether formal or informal) shall be pending or, to Seller's
knowledge, threatened which challenges the transactions contemplated
hereby; and
(e) The FCC Consents shall have been obtained and shall have become
a Final Order without the imposition of any conditions adverse to Buyer
or its affiliates.
10. Certain Conditions to Seller's Obligations. Buyer and Seller agree
that Seller's obligations hereunder are specifically conditioned upon the prior
occurrence of the following unless waived, in whole or in part, by Seller:
(a) The representations and warranties of Buyer in this Agreement
shall be true and correct in all material respects (provided that any
representation or warranty contained herein that is qualified by a
materiality qualification shall not be further
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qualified hereby) as of the Closing Date;
(b) Seller shall have performed all obligations under its covenants
and agreements in this Agreement, in all material respects (provided
that any covenant or agreement contained herein that is qualified by a
materiality qualification shall not be further qualified hereby),
before the Closing Date.
(c) The FCC Consents shall have been obtained.
11. Cooperation. Buyer and Seller agree to cooperate fully with one
another in taking any actions necessary or helpful to accomplish the
transactions contemplated hereby, including actions by Seller to assist any
financing efforts of Buyer and actions to obtain consents required by the FCC or
any third party; provided, however, that no party shall be required to take any
action which would have a material adverse effect upon it or any of its
affiliates.
12. Bulk Sales. Buyer and Seller agree to waive compliance with all
"bulk sales" or similar laws that may be applicable to the transactions
contemplated hereby, and Seller agrees to indemnify and hold Buyer harmless
against any claim made against Buyer by any creditor as a result of failure to
comply with any such laws.
13. Confidentiality. Buyer and Seller shall each keep confidential all
information obtained by it with respect to the other in connection with this
Agreement, will use such information solely in connection with the transactions
contemplated hereby, and shall return all such information to the other party if
such transactions are not consummated for any reason.
14. Public Statements. Except for statements required by law or by any
listing agreements with any national securities exchange or the National
Association of Securities Dealers, Inc., or made in disclosures filed pursuant
to the Securities Act of 1933 or the Securities Act of 1934, Buyer and Seller
shall consult with each other before making any public statements with respect
to this Agreement or the transactions contemplated hereby.
15. Costs and Expenses. Except as otherwise expressly set forth in this
Agreement, Buyer and Seller agree that Buyer shall be solely responsible for all
costs and expenses incurred in connection with the consummation of the
transactions contemplated hereby.
16. Termination. This Agreement may be terminated at any time prior to
Closing as follows:
(a) by written notice of Buyer to Seller or Seller to Buyer, if
the other breaches any of its representations or warranties contained herein
(without giving effect to any materiality qualifiers contained therein), in any
material respect, or defaults in the performance of its covenants or agreements
contained herein (without giving effect to any materiality qualifier contained
therein), in any material respect, and such breach or default shall not be cured
within thirty (30) days after the date notice of such breach or default is
served by the party seeking to terminate this Agreement; or
(b) by written notice of Buyer to Seller or Seller to Buyer, if
the FCC denies granting the FCC Consents or designates the application for a
trial-type hearing; or
(c) by written notice of Buyer to Seller or Seller to Buyer, if
there shall be in effect any judgment, decree or order that would prevent or
make unlawful the Closing of the transactions contemplated by this Agreement; or
(d) by written notice of Buyer to Seller, or by Seller to Buyer,
if the Closing shall not have been consummated on or before the first
anniversary of the filing by the parties of the application for the FCC Consents
(the "Termination Date"); or
(e) by written notice of Buyer to Seller, if the FCC grants the
FCC Consents with conditions adverse to Buyer or its affiliates;
provided, however, that no party hereto may effect a termination hereof if such
party is then in material breach or default of this Agreement; and provided
further, that the termination of this Agreement pursuant to this paragraph shall
not relieve any party of any liability for breach of this Agreement prior to the
date of termination.
17. Specific Performance. Buyer and Seller recognize that if Seller
refuses to perform under the provisions of this Agreement, monetary damages
alone will not be adequate to compensate Buyer for its injury. Buyer shall
therefore be entitled, in addition to any other remedies that may be available,
to obtain specific performance of the terms of this Agreement.
18. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Neither this Agreement nor any of the rights, interests, or
obligations hereunder shall be assigned by any of the parties hereto, whether by
operation of law or otherwise; provided, however, that (a) upon notice to Seller
and without releasing Buyer from any of its obligations or liabilities
hereunder, Buyer may assign or delegate any or all of its rights or obligations
under this Agreement to any affiliate of Buyer, and (b) nothing in this
Agreement shall limit Buyer's ability to make a collateral assignment of its
rights under this Agreement to any institutional lender that provides funds to
Buyer or Buyer's designee without the consent of Seller. Seller shall execute an
acknowledgment of such assignment(s) and collateral assignments in such forms as
Buyer or its
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institutional lenders may from time to time reasonably request; provided,
however, that unless written notice is given to Seller that any such collateral
assignment has been foreclosed upon, Seller shall be entitled to deal
exclusively with Buyer as to any matters arising under this Agreement or any of
the other agreements delivered pursuant hereto. In the event of such an
assignment, the provisions of this Agreement shall inure to the benefit of and
be binding on Buyer's assigns.
19. Amendment. No amendment, waiver of compliance with any provision or
condition hereof or consent pursuant to this Agreement shall be effective unless
evidenced by an instrument in writing signed by the party against whom
enforcement of any amendment, waiver or consent is sought.
20. Governing Law. Seller hereby irrevocably submits to the
jurisdiction of any state or federal court in Texas with respect to any action
or proceeding arising out of or relating to this Agreement. In this regard,
Buyer shall have the exclusive right to select among the available state and
federal courts in Texas. The parties hereby irrevocably agree that all claims in
respect of such action or proceeding shall be heard and determined in such state
or federal court selected by Buyer. Seller hereby irrevocably waives any right
that Seller otherwise might have (i) to remove such action or proceeding (or any
claims within such action or proceeding) to a federal court in the event that
Buyer selects a state court forum or (ii) to transfer such action or proceeding
(or any claims within such action or proceeding) to any court other than the
court selected by Buyer. The parties hereby consent to and grant to any such
court jurisdiction over the persons of such parties and over the subject matter
of any such dispute and agree that delivery or mailing of any process or other
papers in the manner provided herein, or in such other manner as may be
permitted by law, shall be valid and sufficient service thereof.
21. Notice. All notices, requests, consents, waivers and other
communications required or permitted to be given hereunder shall be in writing
and shall be deemed to have been given (a) if transmitted by facsimile, upon
acknowledgment of receipt thereof in writing by facsimile or otherwise; (b) if
personally delivered, upon delivery or refusal of delivery; (c) if mailed by
registered or certified United States mail, return receipt requested, postage
prepaid, upon delivery or refusal of delivery; or (d) if sent by a nationally
recognized overnight delivery service, upon delivery or refusal of delivery. All
notices, consents, waivers or other communications required or permitted to be
given hereunder shall be addressed to the respective party to whom such notice,
consent, waiver or other communication relates at the above listed addresses for
Buyer and Seller.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
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23. Severability. Buyer and Seller agree that if one or more provisions
contained in this Agreement shall be deemed or held to be invalid, illegal or
unenforceable in any respect under any applicable law, this Agreement shall be
construed with the invalid, illegal or unenforceable provision deleted, and the
validity, legality and enforceability of the remaining provisions contained
herein shall not be affected or impaired thereby.
24. Entire Agreement. This Agreement and the exhibits hereto embody the
entire agreement and understanding of the parties hereto and supersede any and
all prior agreements, arrangements and understandings relating to the matters
provided for herein.
25. No Liability. Seller agrees that no stockholder, director or
officer of Buyer or its affiliates shall have any personal or individual
liability for the obligations of Buyer under this Agreement or any other
agreement entered into in connection with this Agreement other than as an
assignee of this Agreement.
26. Further Actions. After the Closing Date, Seller shall execute and
deliver such other certificates, agreements, conveyances, and other documents,
and take such other action, as may be reasonably requested by Buyer in order to
transfer and assign to, and vest in, Buyer the Assets pursuant to the terms of
this Agreement.
27. No Reversionary Interest. The parties expressly agree, pursuant to
Section 73.1150 of the FCC rules, that Seller does not retain any right to
reassignment in the future of any of the FCC licenses transferred pursuant to
this Agreement or to operate or use the facilities of the Station for any period
beyond the Closing Date.
[Remainder of page intentionally left blank.]
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Kindly sign where indicated below to indicate your acceptance of this
Agreement with the terms set forth above.
Sincerely,
CAPSTAR ACQUISITION COMPANY, INC.
By:
-----------------------------------------
Xxxxxxx X. Xxxxxxxx, Xx.
Vice President
The foregoing reflects my understanding and agreement as outlined above this
______ day of July, 1998.
R. XXXXXX XXXXX
In his individual capacity
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SCHEDULE 1-A
ASSUMED CONTRACTS
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SCHEDULE 6(c)
LICENSES AND PERMITS
