EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made as of September
18, 2003, by and between Spanish Broadcasting System, Inc., a Delaware
corporation ("SELLER"), and Border Media Partners, LLC, a Delaware limited
liability company ("BUYER").
WITNESSETH
WHEREAS, KLEY Licensing, Inc. ("KLEYLI"), a Delaware corporation, is
the licensee of radio broadcast station KLEY-FM, Floresville, Texas and KSAH
Licensing, Inc. ("KSAHLI"), a Delaware corporation, is the licensee of KSAH
(AM), Universal City, Texas (each of KLEY-FM and KSAH (AM) individually a
"STATION" and together, the "STATIONS" and each of SBS-SA and KSAHLI
individually a "LICENSEE" and together, the "LICENSEES") pursuant to certain
licenses, permits, authorizations and approvals issued by the Federal
Communications Commission (the "FCC"); and
WHEREAS, Licensees are wholly owned subsidiaries of Seller; and
WHEREAS, subject to the terms and conditions set forth herein, (i)
Seller and Licensees desire to assign to Buyer and Buyer desires to acquire from
Seller and Licensees, the FCC Authorizations (as hereinafter defined) and (ii)
Seller desires to convey to Buyer, and Buyer desires to acquire from Seller, the
businesses of the Stations and their related tangible and intangible assets and
properties used principally in connection with the operation of the Stations;
and
WHEREAS, the FCC Authorizations may not be assigned to Buyer without
the prior written consent of the FCC;
NOW, THEREFORE, taking the foregoing into account, and in consideration
of the mutual covenants and agreements set forth herein, the parties, intending
to be legally bound, hereby agree as follows:
ARTICLE I
SALE AND PURCHASE
Section 1.1 Station Assets. Subject to and in reliance upon the
representations, warranties and agreements herein set forth, and subject to the
terms
and conditions herein contained, Seller and, where appropriate, Licensees shall
grant, convey, sell, assign, transfer and deliver to Buyer on the Closing Date
(as hereinafter defined), all of Seller's and, where appropriate Licensees,
rights, title and interest in and to the following assets, properties and rights
used principally in connection with the business or operation of the Stations
(collectively, the "STATION ASSETS"):
(a) Licenses and Authorizations. All of the licenses,
permits and other authorizations issued by the FCC to Seller or Licensees for or
in connection with the operation of the Stations (the "FCC AUTHORIZATIONS"),
including without limitation those listed or described in SCHEDULE 1.1 (A)
attached hereto, and all applications therefor, together with any renewals,
extensions or modifications thereof and additions thereto.
(b) Tangible Personal Property. All equipment, electrical
devices, antennas, cables, vehicles, furniture, fixtures, improvements, office
materials and supplies, office equipment, hardware, tools, spare parts, and
other tangible personal property of every kind and description, if any, used
principally in the business or operations of the Stations, including without
limitation those items listed or described in SCHEDULE 1.1(B); to the extent not
included in the Real Property hereinafter defined, towers, transmitter
facilities, transmitter building furniture and equipment, antennas, main and
backup transmitters and generators, if any, STLs; and any additions and
improvements between the date of this Agreement and the Closing Date
(collectively, "TANGIBLE PERSONAL PROPERTY").
(c) Real Property. All interests of Seller as of the date
of this Agreement in all land, leaseholds, licenses, rights-of-way, easements
and other interests of every kind and description in and to all of the real
property and buildings, towers, transmitters, antennas, fixtures and
improvements thereon, used principally in connection with the business or
operation of the Stations, including without limitation those listed and
described on SCHEDULE 1.1(C) attached hereto, and any additions and improvements
thereto between the date of this Agreement and the Closing Date (collectively,
the "REAL PROPERTY").
(d) Files and Records. All FCC logs and other records
that relate to the business or operation of the Stations, and all files and
other records of Seller relating to the business or operation of the Station
(other than duplicate copies of such files ("DUPLICATE RECORDS")) including
without limitation engineering data, sales records and other sales and traffic
information.
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(e) Intangible Assets. All of Seller's assignable rights
in and to the intangible assets used principally in connection with the business
or operation of the Stations, including without limitation those listed in
SCHEDULE 1.1 (E) attached hereto and all other Station patents, service marks,
copyrights, franchises, software, licenses (other than FCC Authorizations),
trademarks, trade names, station names, call signs or letters, jingles, slogans,
logotypes and other intellectual property owned, used, or held for use by Seller
in connection with the business or operations of the Stations (including any and
all common law rights, applications, registrations, extensions and renewals
relating thereto) and all goodwill associated therewith (collectively, the
"INTANGIBLE ASSETS").
(f) Prepaid Items. All advance payments to Seller by
advertisers for advertising that would run after the Closing Date and other
advance payments by third parties for services to be provided by or for the
Stations after the Closing Date.
(g) Station Agreements. All leases, contracts and
agreements listed or described in SCHEDULE 1.1 (G), any other contracts and
agreements pertaining to the Stations (whether identified prior to the execution
of his Agreement or subsequently) that Buyer specifically agrees in writing to
assume in its sole discretion, and any additional contracts or agreements
executed and delivered, if written, or entered into orally, if oral, by Seller
between the date hereof and the Closing Date that Buyer specifically agrees in
writing to assume in its sole discretion (collectively, the "ASSUMED
CONTRACTS").
(h) Third-Party Claims. Except (a) for claims relating to
taxes, (b) as otherwise provided in SCHEDULE 1.1(H), or (c) for reimbursement of
payments already made by Seller, all rights and claims of Seller against third
parties relating to the Station Assets.
(i) Other Assets. All other assets of Seller used
principally in connection with the business or operation of the Stations, other
than the Excluded Assets (as hereinafter defined).
Section 1.2 Excluded Assets. The following assets are expressly
excluded from the Station's assets to be purchased and sold (collectively, the
"EXCLUDED ASSETS"):
(a) Cash on hand as of the Closing Date other than the
amounts described in Section 1.1 (f);
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(b) Deposit accounts as of the Closing Date;
(c) Accounts receivable of Seller accruing prior to the
Closing Date (the "SELLER ACCOUNTS RECEIVABLE");
(d) Contracts, agreements and leases other than those
specified in Section 1.1(g).
(e) Any asset of Seller, real or personal, owned or
leased, not used principally in connection with the business or operation of the
Stations;
(f) Seller's corporate books and records related to
internal corporate matters and financial relationships not primarily related to
the Stations;
(g) Any pension or other employee benefit plans of
Seller;
(h) Claims of Seller that accrue under this Agreement;
and
(i) Any other assets specifically excluded from the
Station Assets under this Agreement.
Section 1.3 Liabilities.
(a) The Station Assets shall be sold and conveyed to
Buyer by instruments of conveyance in form reasonably satisfactory to Buyer and
free and clear of all mortgages, liens, deeds of trust, security interests,
pledges, restrictions, prior assignments, charges, claims, and encumbrances of
any kind or type whatsoever (collectively, "LIENS") except: (i) Liens for real
estate taxes not yet due and payable for which Buyer receives a Purchase Price
adjustment under Section 1.7; and (ii) the post-Closing obligations of Seller
which Buyer will assume under the Assumed Contracts ((i) and (ii) collectively,
the "PERMITTED ENCUMBRANCES").
(b) Unless specifically assumed by Buyer as of the
Closing Date, Buyer will assume and agree to pay for, discharge and perform
insofar as they relate to the time period on and after the Closing Date, and
arise out of events occurring on or after the Closing Date, all the obligations
and liabilities of Seller under the Assumed Contracts. Otherwise, Buyer shall
not assume or be liable for, and does not undertake to attempt to, assume or
discharge: (i) any liability or obligation of Seller arising out of or relating
to any contract, lease agreement, or instrument; (ii) any
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liability or obligation of Seller arising out of or relating to any employee
benefit plan or otherwise relating to employment (all employment obligations
shall be brought current by Seller as of the Closing Date, including the payment
of all accrued benefits and severance pay and all bonuses, whether or not such
benefits or bonuses are due as of the Closing Date); (iii) any liability or
obligation of Seller arising out of or relating to any litigation, proceeding or
claim (whether or not such litigation, proceeding or claim is pending,
threatened or asserted before, on or after the Closing Date); (iv) any other
liabilities, obligations, debts or commitments of Seller whatsoever, whether
accrued now or hereafter, whether fixed or contingent, whether known or unknown;
or (v) any claims asserted against either Station or any of the Station Assets
relating to any event (whether act or omission) occurring prior to the Closing
Date including, without limitation, the payment of all taxes.
(c) Buyer shall in no event assume any liability or
obligation arising (i) from the assignment to Buyer of any contract, lease or
agreement in violation of its terms or (ii) from any other breach or default by
Seller upon or prior to Closing under any contract, lease or agreement.
(d) Seller retains and shall hereafter pay, satisfy,
discharge, perform and fulfill all obligations and liabilities not expressly
assumed by Buyer hereunder as they become due, without any charge or cost to
Buyer, and Seller agrees to indemnify and hold Buyer and its successors and
assigns harmless from and against any and all such liabilities in accordance
with the terms of Article IX.
Section 1.4 Purchase Price.
(a) Purchase Price. The purchase price to be paid for the
Station Assets will be an amount equal to the sum of TWENTY FOUR MILLION, FOUR
HUNDRED THOUSAND DOLLARS ($24,400,000.00), subject to any adjustments
hereinafter described (the "Purchase Price").
(b) Method of Payment. Upon Closing, the Purchase Price
shall be paid by Buyer in immediately available funds. Seller shall provide
Buyer wire transfer instructions not less than five days prior to the Closing
Date.
(c) Allocation of Purchase Price. Buyer and Seller will
allocate the Purchase Price in accordance with the respective fair market value
of the Station Assets and the goodwill being purchased and sold in accordance
with the requirements of Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"). The allocation shall be determined by mutual agreement of
the parties
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within ninety (90) days of the Closing Date. Buyer and Seller each further
agrees to file its federal income tax returns and its other tax returns
reflecting such allocation.
Section 1.5 Escrow Deposit. Buyer will fund an escrow deposit (the
"Deposit") with Americom Radio Brokers, Inc. ("Escrow Agent") in accordance with
the terms of an Escrow Agreement between the parties to be executed on the date
hereof and attached as Schedule 1.5 and to be funded by Buyer as set forth in
the Escrow Agreement. The Deposit shall be paid to Seller on the Closing Date
and shall be credited against the Purchase Price. Any interest accrued on the
Deposit shall be paid to Buyer on the Closing Date. If Closing does not take
place due to the material breach of Seller and Buyer is not then in material
breach, the Deposit and interest shall be paid to Buyer; if Closing does not
take place due to the material breach of Buyer, and Seller is not then in
material breach, Seller shall be entitled to liquidated damages of ONE MILLION,
ONE HUNDRED FIFTY THOUSAND DOLLARS ($1,150,000) in accordance with Section 10.4.
Section 1.6 Closing. The consummation of the sale and purchase of the
Station Assets provided for in this Agreement (the "Closing") shall take place:
(i) at a date, time and location designated by Buyer that is no later than
fifteen (15) days after the date(s) of the public notices by the FCC announcing
the initial grants of the Applications for the Stations (as defined in Section
4.11) or (ii) if the satisfaction or waiver of the last of the closing
conditions required to be satisfied or waived pursuant to Articles VI and VII
has not occurred as of five (5) business days after the date of the FCC Consent
(as defined in Section 4.11), the Agreement has not been terminated, and Buyer
is otherwise prepared to close, then at a date, time and location designated by
Buyer that is within five (5) business days of the last such satisfaction or
waiver. The date on which the Closing is to occur is referred to herein as the
"CLOSING DATE."
Section 1.7 Proration of Expenses.
1.7.1 All pre-paid expenses and deposits, and all expenses
for which liability has accrued but whose payment is not yet due as of the
Closing Date, including without limitation (i) such expenses in connection with
the Station Agreements, (ii) rents and deposits, (iii) utility deposits and
charges, including electricity, water and sewer charges, (iv) business and
license fees, including any retroactive adjustments thereof, (v) property and
equipment rentals, (vi) applicable copyright or other fees, (vii) sales and
service charges, (viii) real and personal property taxes in connection with the
Station Assets, (ix) operating expenses, and (x) similar prepaid and deferred
items, and all revenues arising from the operation of the
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Station shall be pro-rated and adjusted between Buyer and Seller in accordance
with the principle that Seller shall receive all revenues, and shall be
responsible for all expenses, costs, and liabilities allocable to the conduct of
the business or operations of the Station up to 11:59 p.m. on the day before the
Closing Date. Seller's prepaid expenses shall only be incurred in the Ordinary
Course of Business (as defined in Section 4.1(d)). All prorations shall be made
in accordance with generally accepted accounting principles. Notwithstanding the
foregoing, there shall be no adjustment for, and Seller shall remain solely
liable with respect to, any contract, obligation or liability other than the
Assumed Contracts.
1.7.2 At the conclusion of ninety (90) days from and after
the Closing Date, a final adjustment of the items to be pro-rated between Buyer
and Seller pursuant to Section 1.7.1 shall be made. In the event of any disputes
between the parties as to such prorations, the amounts not in dispute shall
nonetheless be paid at the time provided herein and such disputes shall be
determined by an independent certified public accountant mutually acceptable to
the parties, and the fees and expenses of such accountant shall be paid one-half
by Seller and one-half by Buyer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows. As of the Closing
Date, such representations and warranties shall be made in accordance with
Section 7.1 of this Agreement.
Section 2.1 Status. Seller and Licensees are corporations, duly
organized, validly existing and in good standing under the laws of the
jurisdictions of their organization (as first set forth above). Seller and
Licensees are duly qualified to do business and are in good standing in such
states in which the failure to so qualify would have a material adverse effect
on the business of the Stations. Seller and Licensees have the requisite power
to carry on the business of the Stations as it is now being conducted and to own
and operate the Stations, and Seller has the requisite power to enter into and
complete the transactions contemplated by this Agreement (the "SUBJECT
TRANSACTIONS").
Section 2.2 Authority. All actions necessary to be taken by or on the
part of Seller and Licensees in connection with the Subject Transactions have
been duly and validly taken, and this Agreement has been duly and validly
authorized,
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executed, and delivered by Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
Section 2.3 No Conflict. The execution, delivery and performance of
this Agreement and the consummation of the Subject Transactions will not (a)
conflict with or violate the organizational documents of Seller or Licensees;
(b) conflict with or violate or result in any breach of or any default under,
result in any termination or modification of, or cause any acceleration of any
obligation under, any contract to which any of Seller or Licensees is a party or
by which any is bound, or by which the Stations or any of the Station Assets
maybe affected, or result in the creation of any Lien upon any of the Station
Assets; or (c) violate any judgment, decree, order, statute, law, rule or
regulation applicable to Seller, Licensees, the Stations or any of the Station
Assets.
Section 2.4 No Breach. Except as disclosed in SCHEDULE 2.4, neither
Seller nor any of the Licensees is in violation or breach of any of the terms,
conditions or provisions of any contract, or any court order, judgment,
arbitration award, or decree relating to or affecting the Stations or the
Station Assets to which Seller or either Licensee is a party or by which it is
bound.
Section 2.5 Liabilities. Neither Seller nor any of the Licensees has
liabilities or obligations relating to the Stations or the Station Assets that
could create a lien on any of the Stations or the Station Assets, except as set
forth on SCHEDULE 2.5.
Section 2.6 Taxes. Seller and/or Licensees have timely filed all
applicable federal, state, local and foreign tax returns required to be filed
and, to Seller's knowledge, has paid all taxes, interest, and penalties required
to have been paid with respect to or involving the Station or the Station
Assets. Neither Seller nor either of the Licensees has been advised that they
are subject to any tax liens or that any of its returns, federal, state, local
or foreign, have been or are being audited.
Section 2.7 Licenses. The Licensees are, and as of the Closing Date
will be, the holders of the FCC Authorizations listed and described on SCHEDULE
1.1 (A). Complete copies of the FCC Authorizations have been delivered to Buyer.
Such FCC Authorizations constitute all of the licenses, authorizations and
approvals required under the Communications Act of 1934, as amended (the
"COMMUNICATIONS ACT"), or the rules, regulations and written decisions and
policies of the FCC (collectively with the Communications Act, the "FCC RULES")
for and used in connection with the operation of the Stations. To Seller's
knowledge, the
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FCC Authorizations have not been revoked, suspended, canceled, rescinded or
terminated and have not expired. Seller has no reason to believe that the FCC
Authorizations will not be renewed in the ordinary course. The expiration dates
for the FCC Authorizations are listed on SCHEDULE 1.1 (A). To Seller's best
knowledge, there is not pending or threatened any action by or before the FCC to
revoke, suspend, cancel, rescind or modify materially any of the FCC
Authorizations (other than proceedings to amend FCC rules of general
applicability), and to Seller's best knowledge there is not now issued or
outstanding or pending or threatened, by or before the FCC, any order to show
cause, notice of violation, notice of apparent liability, or notice of
forfeiture or complaint against Seller, any of the Licensees, or the Stations.
Seller shall notify Buyer in writing of any such action, order, notice or
complaint and Seller and Licensees will take all reasonable measures to contest
in good faith or seek removal or rescission of any such action, order, notice or
complaint. The Stations are operating at their licensed power levels and antenna
heights and Seller, the Licensees, and the Stations are in compliance with the
FCC Authorizations and the FCC Rules, except as noted in SCHEDULE 1.1(A).
Section 2.8 Additional FCC Matters.
Except as noted in SCHEDULE 1.1(A):
(a) Except for material omissions noted in SCHEDULE 1.1
(A), all reports and filings required to be filed with the FCC by Seller or the
Licensees with respect to the Stations have been timely filed. Except for
material omissions noted in SCHEDULE 1.1 (A), all such reports and filings are
materially accurate and complete. Licensees maintain public files and main
studios for the Stations in compliance with FCC Rules. Where an FCC
Authorization is required, Licensees are operating only those facilities for
which an appropriate FCC Authorization has been obtained and is in effect, and
Licensees are meeting the conditions of each such FCC Authorization in all
material respects.
(b) Seller and Licensees are in compliance with all
requirements of the FCC Rules, the Federal Aviation Administration, and any
other applicable federal, state or local ordinance. All towers used in the
operation of the Stations are registered with the FCC unless such towers are not
required by FCC Rules to be so registered.
(c) To Seller's best knowledge, the operation of the
Stations does not cause or result in exposure of workers or the general public
to levels of radio frequency radiation in excess of the "Radio Frequency
Protection Guides"
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recommended in "American National Standard Safety Levels with Respect to Human
Exposure to Radio Frequency Electromagnetic Fields 300 kHz to 100 GHz"
(ANSI/IEEE C95.1-1992), issued by the American National Standards Institute, and
renewal of the FCC Authorizations would not constitute a "major action" within
the meaning of Section 1.1301, et seq., of the FCC Rules.
(d) Seller knows of no reason why the Licensees would be
prohibited from assigning the FCC Authorizations to Buyer.
Section 2.9 Station Assets. Seller will as of the Closing Date have
good, valid and marketable title to all of the Station Assets, free and clear of
all Liens (other than Permitted Encumbrances). Each item of Tangible Personal
Property including, without limitation, all equipment and electrical devices, is
in normal operating condition and repair for its age and usage, is free from
material defect and damage, is functioning in the manner and for the purposes
for which it was intended, has been maintained in material accordance with FCC
Rules, and does not require any repairs other than normal routine maintenance.
Other than as disclosed in SCHEDULE 2.4, there is no pending or threatened
action, event, transaction or proceeding that could interfere with the quiet
enjoyment or operation of the Station Assets by Buyer on or after the Closing
Date. The Station Assets include all the personal property and assets presently
used by Seller to conduct the operation of the Stations as now conducted.
Section 2.10 Real Property. Except as disclosed in SCHEDULE 2.10: (i)
the Real Property (whether owned or leased) comprises all interests in real
property necessary to conduct the business or operations of the Stations as now
conducted; (ii) Buyer will have on and after the Closing Date reasonable access
to each of the transmitter sites for the Stations and a continuous means of
ingress and egress thereto from public roads, subject to the terms of the
relevant Leases; and (iii) all towers, guy wires, and guy anchors are located on
the Real Property.
(a) Seller has good and marketable fee simple title in
and to the Real Property it owns, free and clear of all Liens (except the
Permitted Encumbrances).
(b) A list and copy of each of the leases for all leased
Real Property that Seller uses in connection with the business or operation of
the Stations is attached hereto as SCHEDULE 2.10(b) (the "LEASES"). The copies
of the Leases are complete and correct in all material respects. Each of the
Leases is in full force and effect on the terms set forth therein and has not
been modified, amended or altered, in writing or otherwise except as disclosed
in SCHEDULE 2.10(b). Seller is not in
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material default under or unless disclosed in SCHEDULE 2.10 (B) in arrears in
the payment of any sum or in the performance of any obligation required of it
under any of the Leases, and no circumstance presently exists which, with notice
or the passage of time, or both, would give rise to a default by Seller except
as such as will not materially detract from the marketability or value of the
Real Property and does not impair the operations of the lessee thereof in any
material respect.
(c) Seller's improvements upon and the use of the Real
Property conform in all material respects to all applicable restrictions,
restrictive covenants, building codes, fire regulations, building restrictions,
and federal, state and local laws, regulations and ordinances. The Real Property
is zoned for the various purposes for which it is currently being used by Seller
and there are no outstanding variances or special use permits affecting the Real
Property or the current uses thereof. Seller's improvements on the Real Property
are in good working condition and repair for improvements of their age and
usage. There is no pending, threatened or contemplated action to take by eminent
domain or otherwise to condemn the Real Property. Seller has received no notice
of any pending or threatened special assessment or reassessment of all or any
portion of any of the Real Property. Seller has received no notice from any
insurance company of any material defects or inadequacies in the Real Property
or any part thereof, which would materially, adversely affect the insurability
of the same or of any termination or threatened termination of any policy of
insurance. Seller has not received and is not aware of any complaint against the
Stations relating to their Real Property, including without limitation their
towers, transmitters, antennas, transmitter buildings, or the signals broadcast
or otherwise transmitted.
Section 2.11 Environmental Matters.
(a) As used herein, (i) the term "ENVIRONMENTAL LAWS"
shall mean any and all state, federal, and local statutes, regulations,
ordinances, and the common law relating to the protection of human health and
the environment, and (ii) the term "HAZARDOUS MATERIAL" shall mean any hazardous
or toxic substance, material, or waste including, without limitation, those
substances, materials, pollutants, contaminants and wastes listed in the United
States Department of Transportation Hazardous Materials Table (49 C.F.R. Section
172.101) or by the United States Environmental Protection Agency as hazardous
substances (40 C.F.R. Part 302 and amendments thereto), petroleum products (as
defined in Title I to the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6991-6991(i)) and their derivatives, and such other substances,
materials, pollutants, contaminants and
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wastes as become regulated or subject to cleanup authority under any
Environmental Laws.
(b) Seller represents and warrants that:
(i) all activities of the Seller with respect to
the Real Property have been and are being conducted in material compliance with
applicable Environmental Laws concerning those activities, repairs or
construction of any improvements, manufacturing processing and/or handling of
any materials, and discharges to the air, soil, surface water or groundwater;
(ii) Seller has no knowledge of the release or
presence of any Hazardous Material on, in, from or onto the Real Property;
(iii) Seller has not generated, manufactured,
refined, transported, stored, handled, disposed of or released any Hazardous
Material on the Real Property, nor has Seller or the Stations permitted the
foregoing;
(iv) Seller has not received any notice of any
violation of any Environmental Laws;
(v) to Seller's best knowledge, no action has
been commenced or threatened regarding Seller's compliance with or liability
under any Environmental Laws;
(vi) to Seller's best knowledge, no tanks used
for the storage of any Hazardous Material above or below ground are present or
were at any time present on or about the Real Property;
(vii) no action has been commenced or threatened
regarding the presence of any Hazardous Material on or about the Real Property;
(viii) to Seller's best knowledge, no Hazardous
Materials are present in any medium in the operations of the Stations (or of
Seller with respect to the Stations) and/or at the Real Property in such a
manner as may require investigation or remediation under any applicable law;
(ix) to Seller's best knowledge, no
polychlorinated biphenyls or substances containing polychlorinated biphenyls are
present on the Real Property; and
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(x) to Seller's best knowledge, no friable
asbestos is present in the operations of the Stations and/or on the Real
Property.
(c) Within thirty (30) days of execution of this
Agreement, Buyer shall have the right to conduct a review or audit of the Real
Property and take soil and water samples (including groundwater samples) from
the Real Property, and to test and analyze those samples to determine the extent
of any contamination of the soils and water (including groundwater) on or about
the Real Property. If, based on the results of those inspections and/or tests,
Buyer determines that the condition of any of the Real Property is
unsatisfactory or if Buyer believes that its post-closing interest in any of the
Real Property would expose Buyer to undue risks of government intervention or
third-party liability, Buyer shall notify Seller of its determination within ten
(10) business days of Buyer's receipt of such inspection or test results. Seller
shall notify Buyer within twenty (20) business days thereafter of Seller's
election either to (i) remedy such unsatisfactory condition at Seller's expense
or (ii) not to implement such remedy and to terminate this Agreement. In the
latter case, Buyer shall have the option to withdraw its notification, in which
case this Agreement shall remain in effect, or without any liability owing to
Seller, to terminate this Agreement.
Section 2.12 Absence of Litigation. Except as set forth in SCHEDULE
2.12, there is no investigation, claim, arbitration or litigation pending or
threatened against, affecting or involving the Station Assets, the Stations, or
the business or operation of the Stations, or the Subject Transactions, before
or by any court, arbitrator or other governmental authority that could
reasonably be expected to have a materially adverse effect on the business or
operation of the Stations, and the Stations are not operating under or subject
to an order, award, judgment, writ, decree, determination or injunction of any
court, arbitrator or governmental authority.
Section 2.13 Intellectual Property. Seller has not received any notice
to the effect that its use of the Intangible Assets infringes on any
intellectual property right of another. The Licensees have the right pursuant to
the FCC Rules to use the call letters used by the Stations.
Section 2.14 Contracts. Prior to the date hereof, Seller has provided
Buyer with copies of the Assumed Contracts (and will promptly provide Buyer with
copies of any additional agreements of which Seller becomes aware or which
Seller enters into between the date hereof and the Closing Date). Each Assumed
Contract is in full force and effect, and constitutes a legal, valid, and
binding obligation of, and is legally enforceable against Seller or a Licensee.
Except as disclosed in SCHEDULE
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2.14: (i) Seller has complied in all material respects with the provisions of
such Assumed Contracts and is not in material default thereunder and there has
not occurred any event which (whether with or without notice or lapse of time)
would constitute a material default thereunder by Seller or any of the
Licensees; (ii) there has not been any threatened cancellation of any Assumed
Contract or any outstanding dispute thereunder; and (iii) all material Assumed
Contracts are assignable to and may be assumed by Buyer.
Section 2.15 Employee Matters. To their best knowledge, Seller and
Licensees are in compliance with all applicable laws and regulations relating to
employment at the Stations. Except as disclosed in SCHEDULE 2.15, there are no
collective bargaining agreements, and no employment agreements between Seller or
any Licensee and its employees or professional service contracts not terminable
at will. To Seller's best knowledge, the consummation of the Subject
Transactions will not cause Buyer to incur or suffer any liability relating to,
or obligation to pay, severance, termination, or other payments to Seller's
employees or their heirs, assigns or beneficiaries arising out of the employees'
employment by Seller, or any liability under any employee benefit plans for any
period in which Seller's employees were employed by Seller or a Licensee.
Section 2.16 Insurance. Seller maintains the insurance set forth in
SCHEDULE 2.16 covering the Station Assets. All such policies are in full force
and effect and Seller shall continue the present insurance at the present limits
in full force and effect through the Closing Date.
Section 2.17 Insolvency. No insolvency proceedings of any character
including, without limitation, bankruptcy, receivership, reorganization,
composition or arrangement with creditors, voluntary or involuntary, affecting
Seller, the Licensees, or any of the Station Assets or Real Property is pending
or threatened.
Section 2.18 Brokers. There is no broker or finder or other person
entitled to a commission or brokerage fee or payment in connection with this
Agreement or the Subject Transactions as a result of any agreement of, or action
taken by, Seller or any Licensee, other than Americom Radio Brokers, Inc., for
which Seller shall pay the commission.
Section 2.19 Disclosure. No provision of this Agreement relating to
Seller, the Licensees, the Stations or the Station Assets or any Schedule or
Exhibit contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact required to be stated in order to
make the statement, in light of the
14
circumstances in which it is made, not misleading. Except for facts affecting
the radio industry generally, there is no adverse fact now known to Seller or
the Licensees relating to the Stations or the Station Assets which has not been
disclosed to Buyer.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller:
Section 3.1 Status. Buyer is a Delaware limited liability company which
is duly organized, validly existing and in good standing under the laws of the
State of Texas. Buyer has the requisite power to enter into and complete the
Subject Transactions.
Section 3.2 No Conflicts. Neither the execution, delivery and
performance by Buyer of this Agreement nor the consummation by Buyer of the
Subject Transactions will: (a) conflict with or violate the certificate of
incorporation, bylaws or operating agreement of Buyer; or (b) violate any
judgment, decree, order, statute, law, rule or regulation applicable to Buyer.
Section 3.3 Company Action. All company actions necessary to be taken
by or on the part of Buyer in connection with the Subject Transactions have been
duly and validly taken, and this Agreement has been duly and validly authorized,
executed and delivered by Buyer and constitutes the legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with and subject to
its terms.
Section 3.4 Qualification. Buyer is qualified under the FCC Rules to
acquire the Stations and to hold the FCC Authorizations.
ARTICLE IV
COVENANTS OF SELLER
Seller covenants and agrees that from the date hereof until the
completion of the Closing:
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Section 4.1 Operation of the Business.
(a) Seller and Licensees shall operate the Stations in
accordance with the terms of the FCC Authorizations and in compliance in all
material respects with all applicable laws, rules and regulations, including
without limitation the FCC Rules. Seller and Licensees shall maintain the FCC
Authorizations in full force and effect and shall timely file and prosecute any
necessary applications for renewal of the FCC Authorizations. Seller will
deliver to Buyer, within ten (10) Business Days after filing, copies of any
reports, applications or responses to the FCC related to the Stations.
(b) Seller shall not, by any act or omission, cause any
of the representations and warranties set forth in Article II to become untrue
or incorrect, shall satisfy or cause to be satisfied the conditions to Closing
set forth in Article VII (other than Section 7.2(a) and Section 7.4), and shall
ensure that the Subject Transactions shall be consummated as set forth herein.
(c) Prior to the Closing Date, neither Seller nor any of
the Licensees shall, without the prior written consent of Buyer, apply to the
FCC for any construction permit that would restrict the present operations of
the Stations, or make any change in any of the buildings, leasehold improvements
or fixtures of the Stations except in the Ordinary Course of Business.
(d) Seller and Licensees shall carry on the business and
activities of the Stations in the Ordinary Course of Business. For the purposes
of this Agreement, "ORDINARY COURSE OF BUSINESS" shall mean, with respect to
Seller and Licensees, a course of business consistent with past practices of
Seller and Licensees for the twelve (12) months prior to the date hereof.
Section 4.2 Access to Files and Records. At the request of Buyer,
Seller shall from time to time give or cause to be given to the officers,
employees, accountants, counsel, agents, consultants and representatives of
Buyer: (a) full access during normal business hours, to all accounts, books,
deeds, title papers, insurance policies, licenses, contracts, records,
engineering information, and files of every character, notes and accounts
payable and receivable of Seller with respect to the Stations, which Seller has
represented are located at Seller's headquarters in Coconut Grove, Florida; (b)
reasonable access to Seller's employees; (c) reasonable access for inspection of
the facilities, properties, equipment, machinery, fixtures, furniture, and
vehicles used in the operation of the Stations; and (d) all such other
information concerning the affairs of the Stations as Buyer may reasonably
request. In providing all such information, Seller shall be deemed
16
to have represented and warranted the information to be correct, complete and
fully responsive to Buyer's request therefor. Any investigation or examination
by Buyer shall not in any way diminish, waive or obviate any representations or
warranties of Seller made in this Agreement or in connection herewith. Seller
shall cause its accountants and any agent of Seller in possession of Seller's
books and records to cooperate with Buyer's requests for information pursuant to
this Agreement.
Section 4.3 Confidentiality. Any and all information, disclosures,
knowledge or facts regarding Buyer or its business or properties to which Seller
is exposed as a result of the negotiation, preparation or performance of this
Agreement shall be confidential and shall not be divulged, disclosed or
communicated to any other person, firm, corporation or entity, except for
Seller's employees, attorneys, accountants, investment bankers, investors and
lenders, and their respective attorneys, on a need-to-know basis for the purpose
of consummating the Subject Transactions.
Section 4.4 Encumbrances. Seller shall satisfy all liabilities
associated with, and obtain discharges of, all mortgages, security interests,
liens and similar claims by third parties encumbering the Station Assets (other
than Permitted Encumbrances) at or prior to the Closing Date.
Section 4.5 Insurance. Seller shall maintain in full force and effect
all existing casualty, liability, and other insurance policies through the day
following the Closing Date in amounts not less than those in effect on the date
hereof. Seller will use the proceeds of any claims for loss payable under such
insurance policies to repair, replace, or restore any of the Station Assets
destroyed by fire and other casualties to their former condition as soon as
possible after the loss.
Section 4.6 Notifications. Upon receiving or learning of any violation,
order to show cause, notice of violation, notice of apparent liability,
forfeiture, or written complaint relating to the Stations, the FCC
Authorizations or the FCC Rules, or any material violations under any other
applicable laws and regulations, Seller shall promptly notify Buyer and, at
Seller's expense, use reasonable commercial efforts to cure all such violations
prior to the Closing Date.
Section 4.7 Interruption in Broadcast Operations. Seller shall promptly
notify Buyer in writing if either of the Stations ceases to broadcast at its
authorized power for more than 12 consecutive hours. Such notice shall specify
the reason or reasons for such cessation and the corrective measures taken or to
be taken by Seller.
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Section 4.8 Consents. Seller shall: (i) obtain any third party consents
that are required by the agreements listed in SCHEDULE 1.1(G); and (ii) use
commercially reasonable efforts to obtain any third party consents that are
required by the terms of relevant agreements with a third party to assign to
Buyer the material Station Assets.
Section 4.9 Updating. Seller shall at reasonable intervals following
the date hereof use reasonable efforts to provide Buyer with documentation
regarding any material changes to the Schedules hereto.
Section 4.10 Actions. Seller shall take all reasonable efforts to
fulfill the conditions in Articles VI and VII, and to cause the Subject
Transactions to be fully carried out.
Section 4.11 Applications for FCC Consent. Seller and Licensees will
cooperate with Buyer to file the applications with the FCC (the "APPLICATIONS")
requesting the FCC's written consent to the assignment of the Stations' FCC
Authorizations to Buyer and for the consummation of the Subject Transactions
(the "FCC CONSENT"). Seller and Licensees will diligently take, or cooperate in
the taking of, all steps that are necessary, proper or desirable to expedite the
prosecution of the Applications to a favorable conclusion. Seller and Licensees
will promptly provide Buyer with copies of any pleading, order or other document
served on it relating to the Applications. The obligations of Seller and
Licensees under this Section 4.11 shall survive the Closing, if necessary, until
there is a Final FCC Consent to each of the Applications, no longer subject to
administrative or judicial review.
Section 4.12 Notice of Proceedings. Seller will promptly notify Buyer
in writing upon: (a) becoming aware of any order or decree or any complaint
praying for an order or decree restraining or enjoining the consummation of this
Agreement or the Subject Transactions; or (b) receiving any notice from any
governmental department, court, agency or commission of its intention (i) to
institute an investigation into, or institute a suit or proceeding to restrain
or enjoin, the consummation of this Agreement or such transactions, or (ii) to
nullify or render ineffective this Agreement or such transactions if
consummated.
Section 4.13 Negative Covenants. Pending and prior to the Closing,
Seller will not, without the prior written consent of Buyer, which consent Buyer
may grant or withhold in its sole discretion, do or agree to do any of the
following, as such actions relate to the Stations or the Station Assets:
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(a) Dispositions; Mergers. Sell, assign, lease or
otherwise transfer or dispose of any of the Station Assets other than in the
Ordinary Course of Business, give up Seller's control of Licensees, or merge or
consolidate with or into any other entity or enter into any contracts relating
thereto.
(b) Encumbrances; Additional Agreements. Create or assume
any Lien on any of the Station Assets, whether now owned or hereafter acquired,
unless discharged or terminated and fully released prior to the Closing Date;
acquire or enter into any additional agreements except in the Ordinary Course of
Business; or renew, extend, amend, alter, modify, replace or otherwise change
any Assumed Contract, except in the Ordinary Course of Business or with the
written consent of Buyer.
(c) Contract Terminations. Subsequent to the date of this
Agreement, do or omit to do any act (or permit such action or omission) which
will cause the termination or modification of any material contract or lease
(such material contracts and leases are those designated with an asterisk in
SCHEDULE 1.1 (g)), other than in the case of Seller purchasing or replacing a
Station Asset with a comparable asset, to which Seller is a party or by which
Seller is bound and will notify Buyer immediately of any threat by Seller or a
third party to terminate any such material contract or lease.
(d) Actions Affecting Technical Operations. Modify the
facilities of the Stations.
(e) Actions Creating Adverse Effects. Take or fail to
take any action under any contract where an action or failure to take an action
would have a material adverse effect, other than in the Ordinary Course of
Business.
(f) Inconsistent Actions. Take any other action
inconsistent with Seller's obligations under this Agreement or which could
hinder or delay the consummation of the transaction contemplated by this
Agreement.
(g) Format. Make any change in the broadcast programming
format of either of the Stations without the consent of Buyer, which consent
shall not unreasonably be withheld.
Section 4.14 Actions Affecting FCC Licenses. Pending and prior to the
Closing, Seller will not, without advance written notice to Buyer, (a) change
the call signs of either or both of the Stations or (b) take or fail to take any
action where an action or failure to take an action would have an adverse effect
on Seller's compliance with the
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FCC Rules or would jeopardize the validity or enforceability of or rights under
the FCC Authorizations.
ARTICLE V
COVENANTS OF BUYER
Buyer covenants and agrees that from the date hereof until the
completion of the Closing:
Section 5.1 Application for FCC Consent. Buyer will diligently take, or
cooperate in the taking of, all steps that are necessary, proper or desirable to
expedite the prosecution of the Application to a favorable conclusion. Buyer
will promptly provide Seller with copies of any pleading, order or other
document served on it relating to the Application. Buyer's obligations under
this Section 5.1 shall survive the Closing, if necessary, until there is a Final
FCC Consent.
Section 5.2 Consummation of Agreement. Buyer shall satisfy or cause to
be satisfied the conditions to Closing set forth in Articles VI (other than
Section 6.2(a) and Section 6.3), and shall ensure that the Subject Transactions
shall be consummated as set forth herein.
Section 5.3 Notice of Proceedings. Buyer will promptly notify Seller in
writing upon: (a) becoming aware of any order or decree or any complaint praying
for an order or decree restraining or enjoining the consummation of this
Agreement or the Subject Transactions; or (b) receiving any notice from any
governmental department, court, agency or commission of its intention (i) to
institute an investigation into, or institute a suit or proceeding to restrain
or enjoin, the consummation of this Agreement or such transactions, or (ii) to
nullify or render ineffective this Agreement or such transactions if
consummated.
Section 5.4 Confidentiality. Any and all information, disclosures,
knowledge or facts regarding Seller, Licensees, the Stations and their operation
and properties derived from or resulting from Buyer's acts or conduct
(including, without limitation, acts or conduct of Buyer's officers, employees,
accountants, counsel, agents, consultants or representatives, or any of them)
shall be confidential and shall not be divulged, disclosed or communicated to
any other person, firm, corporation or entity, except for Buyer's attorneys,
accountants, investment bankers, investors and lenders, and their respective
attorneys for the purpose of consummating the Subject Transactions.
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Section 5.5 Seller Accounts Receivable. For the period extending one
hundred and twenty (120) days following the Closing Date (the "Collection
Period"), Buyer shall have the exclusive right to collect and shall use
commercially reasonable efforts to collect the Seller Accounts Receivable (as
defined in Section 1.2(c)) for Seller's benefit. All such collections of Seller
Accounts Receivable shall be remitted to Seller within ten (10) days of the end
of the calendar month in which they were collected. Following the Collection
Period, the right to collect and retain any Seller Accounts Receivable shall
revert to Seller. Buyer will not be required to institute or pursue any legal
actions to collect the Seller Accounts Receivable.
Section 5.6 Actions of the Buyer. Buyer shall not, by any act or
omission, cause any of the representations and warranties set forth in Article
III to become untrue or incorrect, shall satisfy or cause to be satisfied the
conditions to Closing set forth in Article VI (other than Section 6.2(a) and
Section 6.3), and shall ensure that the Subject Transactions shall be
consummated as set forth herein.
Section 5.7 Inconsistent Actions. Pending and prior to the Closing,
Buyer will not, without the prior written consent of Seller, which consent
Seller may grant or withhold in its sole discretion, take any other action
inconsistent with Buyer's obligations under this Agreement which could hinder or
delay the consummation of the transaction contemplated by this Agreement.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are, at its option,
subject to the fulfillment of the following conditions prior to or on the
Closing Date:
Section 6.1 Representations, Warranties and Covenants.
(a) Each of the representations and warranties of Buyer
contained in this Agreement shall have been true and correct in all material
respects as of the date when made and shall be deemed to be made again on and as
of the Closing Date and shall then be true and correct in all material respects,
except to the extent changes are permitted or contemplated pursuant to this
Agreement.
(b) Buyer shall have performed and complied in all
material respects
21
with each and every covenant and agreement required by this Agreement to be
performed or complied with by it prior to or on the Closing Date.
(c) Buyer shall have furnished Seller with a certificate,
dated the Closing Date and duly executed by an officer of Buyer authorized on
behalf of Buyer to give such a certificate, to the effect that the conditions
set forth in Section 6.1(a) and Section 6.l(b) have been satisfied.
Section 6.2 Proceedings.
(a) Neither Seller or any of the Licensees nor Buyer
shall be subject to any restraining order or injunction restraining or
prohibiting the consummation of the Subject Transactions.
(b) In the event such a restraining order or injunction
is in effect, this Agreement may not be abandoned by Seller pursuant to this
Section 6.2 prior to the Termination Date, but the Closing shall be delayed
during such period. Seller and Licensees shall take all commercially reasonable
steps to have any such order dissolved or terminated in order to effectuate the
Closing.
Section 6.3 Governmental Authorizations. The FCC shall have issued its
initial approval of the Application and the Subject Transactions shall have been
approved by all other governmental authorities whose approval is required.
Section 6.4 Deliveries. Buyer shall have complied with each of its
obligations set forth in Section 8.2.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement are, at its option,
subject to the fulfillment of the following conditions prior to or on the
Closing Date:
Section 7.1 Representations, Warranties and Covenants.
(a) Each of the representations and warranties of Seller
and Licensees contained in this Agreement or in any documents delivered pursuant
hereto shall be true
22
and correct in all material respects on and as of the Closing Date except to the
extent changes are permitted or contemplated pursuant to this Agreement (it
being understood that for purposes of this Section 7.1(a), the representations
and warranties of Seller and Licensees shall mean such representations of Seller
and Licensees after disregarding all knowledge qualifications of Seller and
Licensees). Seller shall use commercially reasonable efforts to identify any
litigation to which Seller or any of the Licensees is a party that is pending as
of the Closing Date.
(b) Seller shall have performed and complied in all
material respects with each and every covenant and agreement required by this
Agreement to be performed or complied with by it prior to or on the Closing
Date.
(c) Seller shall have furnished Buyer with a certificate,
dated the Closing Date and duly executed by the President and Chief Executive
Officer of Seller authorized on behalf of Seller to give such a certificate, to
the effect that the conditions set forth in Section 7 have been satisfied.
Section 7.2 Proceedings.
(a) Neither Seller nor any of the Licensees nor Buyer
shall be subject to any restraining order or injunction restraining or
prohibiting the consummation of the Subject Transactions.
(b) In the event such a restraining order or injunction
is in effect, this Agreement may not be abandoned by Buyer pursuant to this
Section 7.2 prior to the Termination Date, but the Closing shall be delayed
during such period. Buyer, Seller and Licensees shall take all reasonable steps
to have any such order dissolved or terminated in order to effectuate the
Closing.
Section 7.3 Consents.
(a) Seller shall have obtained on or prior to the Closing
Date all consents, estoppels, authorizations or approvals necessary or
commercially reasonable to release Liens relating to, and effect valid
assignments to Buyer of, the Station Assets, including without limitation the
assignment of the Assumed Contracts and commercially reasonable estoppel
certificates from the lessors of leased Real Property set forth in SCHEDULE
1.1(C), except for the FCC Consent, which shall be governed by Section 7.4.
Seller shall also have obtained, through action or inaction of the lessor, a
five-year renewal of the tower lease contained in SCHEDULE 2.10(B) pursuant to
Section 2 of that lease.
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(b) The execution and delivery of the each of the
documents Seller is obligated to provide under this Agreement, the fulfillment
of and the compliance with the respective terms and provisions of each, and the
consummation of the transactions described in each, do not and will not (i)
conflict with or violate any law, regulation, order, award, judgment, injunction
or decree applicable to or affecting Seller, Licensees, the Station Assets or
the Stations, (ii) to Seller's best knowledge, conflict with or result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under any contract to which Seller or
Licensees is a party or by which Seller or Licensees is bound or to which any of
the Station Assets or the Stations is subject or affected (except with respect
to consents of third parties referred to in Section 7.3.(a)), or result in the
creation of any Lien upon the Station Assets, or (iii) conflict with or violate
any provision of Seller's articles of incorporation, except, in the case of any
of (i), (ii), or (iii), as would not materially affect Buyer's ability to
consummate Subject Transactions.
Section 7.4 Governmental Authorizations. The FCC shall have issued its
initial approval of the Application without any conditions materially adverse to
Buyer, and the Subject Transactions shall have been approved by all other
governmental authorities whose approval is required.
Section 7.5 Absence of Litigation. Except as disclosed in SCHEDULE 2.12
and except for litigation against Buyer or litigation to the extent that it is
based on actions or inactions of Buyer, there shall be no investigation, claim,
arbitration or litigation pending against, affecting or involving the Station
Assets, the Stations, or the business or operation of the Stations, or the
Subject Transactions, before or by any court, arbitrator or other governmental
authority, and the Stations shall not be operating under or subject to an order,
award, judgment, writ, decree, determination or injunction of any court,
arbitrator or governmental authority that would have a material adverse
consequence on Buyer or the operations of the Stations. No insolvency
proceedings of any character pending against, affecting or involving affecting
Seller, Licensees, the Station Assets, the Stations or the business or operation
of the Stations, and neither Seller nor Licensees shall have taken any action in
contemplation of, or that would constitute the basis for, the institution of any
such insolvency proceedings.
Section 7.6 Deliveries. Seller and Licensees shall have complied with
each of its obligations set forth in Section 8.1.
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ARTICLE VIII
ITEMS TO BE DELIVERED AT THE CLOSING
Section 8.1 Deliveries by Seller. At the Closing, Seller and, where
appropriate, Licensees shall deliver (or cause to be delivered) to Buyer the
following documents and instruments of conveyance and assignment, in each case
reasonably satisfactory in form and substance to Buyer and its counsel and duly
executed by Seller or such other signatory as may be required by the nature of
the document:
(a) bills of sale, certificates of title, endorsements,
assignments, consents and other good and sufficient instruments of sale,
conveyance, transfer and assignment sufficient to sell, convey, transfer and
assign the FCC Authorizations, the Assumed Contracts, and the Station Assets to
Buyer free and clear of any Liens (other than Permitted Encumbrances) and to
quiet Buyer's title thereto;
(b) certified copies of the consents and/or resolutions
of the directors, and officers of Seller and the shareholder of Licensees, which
shall be in full force and effect at the time of the Closing, authorizing the
execution, delivery and performance by Seller of this Agreement, and the
consummation of the Subject Transactions;
(c) the certificate referred to in Section 7.l(c);
(d) all consents and estoppel certificates required
pursuant to this Agreement;
(e) an opinion of Seller's corporate counsel and an
opinion of Seller's FCC counsel substantially in the form of SCHEDULE 8.1(e);
(f) to the extent not previously transferred, the files,
records and other information referenced in Section 1.1(d);
(g) the Closing proration as referenced in Section 1.7.1;
(h) written instructions by Seller to terminate the
Escrow Agreement and deliver the Escrow Deposit to Seller and the interest
thereon to Buyer; and
(i) such other documents to be delivered by Seller and
Licensees hereunder as are reasonably necessary for Buyer to effectuate and
document the Subject Transactions.
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Section 8.2 Deliveries by Buyer. At Closing, Buyer shall deliver to
Seller in a form reasonably agreeable to Seller and its counsel:
(a) the Purchase Price, which shall be paid in the manner
specified in Section 1.4;
(b) an instrument or instruments of assumption of the
Seller Contracts and real property leases to be assumed by Buyer pursuant to
this Agreement;
(c) certified copies of resolutions, duly adopted by the
members of Buyer, which shall be in full force and effect at the time of the
Closing, authorizing the execution, delivery and performance by each Buyer of
this Agreement and the consummation of the Subject Transactions;
(d) the certificate referred to in Section 6.l(c);
(e) the Closing proration as referenced in Section 1.7.1;
(f) such other documents to be delivered by Buyer
hereunder as are reasonably necessary for Seller and Licensees to effectuate and
document the Subject Transactions; and
(g) written instructions by Buyer to terminate the Escrow
Agreement and deliver the Escrow Deposit to Seller and the interest thereon to
Buyer[; and
(h) an opinion of Buyer's corporate counsel substantially
in the form of SCHEDULE 8.2(H).
ARTICLE IX
SURVIVAL; INDEMNIFICATION
Section 9.1 Survival. Except as otherwise specifically provided in this
Agreement, all representations, warranties, covenants and agreements contained
in this Agreement, or in any certificate, agreement, or other document or
instrument, delivered pursuant hereto, shall survive (and not be affected in any
respect by) the Closing for a period of one (1) year, provided that if a Claim
(as hereinafter defined) or notice for indemnification with respect to any such
representation, warranty, covenant, agreement, certificate, or other document or
instrument, arises prior to the end of the survival period,
26
such Claim or notice shall continue (and such representation, warranty,
covenant, agreement, certificate, or other document or instrument shall survive)
indefinitely until such Claim is finally resolved.
Section 9.2 Indemnification in General. Buyer and Seller agree that the
rights to be indemnified and held harmless set forth in this Agreement, as
between the parties hereto and their respective permitted successors and
assigns, shall be exclusive of all rights (other than those specifically
referenced in the Agreement) to be indemnified and held harmless that such party
(or its permitted successors or assigns) would otherwise have by statute, common
law or otherwise.
Section 9.3 Indemnification by Seller. Seller (which shall, for the
purposes of this Section 9.3 and its subsections, include Licensees) shall
indemnify, defend, and hold harmless Buyer, any officer, director or member
thereof, and their permitted assigns with respect to any and all demands,
claims, actions, suits, proceedings, assessments, judgments, costs, losses,
damages, obligations, liabilities, recoveries, deficiencies, and expenses
(including interest, penalties and reasonable attorneys' fees) of every kind and
description (individually or collectively, a "Claim") relating to or arising out
of:
9.3.1 Any breach or non-performance by Seller of, or misrepresentation
with respect to, any of Seller's representations, warranties, covenants or
agreements set forth in this Agreement, it being understood that, for purposes
of this Section 9.3.1, the representations and warranties of Seller shall mean
such representations and warranties of Seller made on and as of the Closing Date
after disregarding all knowledge qualifications of Seller; or
9.3.2 The operations or business of Seller or the Stations prior to the
Closing Date, to the extent such Claim relates to any period before the Closing
Date, regardless of whether disclosed in any schedule or document and regardless
of whether constituting a breach by Seller of any representation, warranty,
covenant or agreement, and any other liability or obligation of Seller other
than the post-Closing obligations assumed by Buyer pursuant to the Assumed
Contracts; or
9.3.3 Any legal, administrative or tax proceedings pursuant to which
Seller is or could be made liable for any taxes, penalties, interest or other
charges and the liability of which is extended to Buyer in connection with the
transactions contemplated by this Agreement; or
9.3.4 Any and all damages occasioned by, arising out of or resulting
from any claim by any person or entity that any agent, broker, investment or
commercial
27
banker, person or firm acting on behalf of Seller that it is entitled to any
broker, finder, financial advisor fee or any other commission or similar fee
directly or indirectly in connection with the transaction contemplated by this
Agreement.
Section 9.4 Indemnification by Buyer. Buyer shall indemnify, defend,
and hold harmless Seller, any officer or director thereof, and their permitted
assigns, with respect to any Claim of any kind and description relating to or
arising out of:
9.4.1 Any breach or non-performance by Buyer of, or
misrepresentation with respect to, any of Buyer's representations, warranties,
covenants or agreements set forth in this Agreement, it being understood that,
for purposes of this Section 9.4.1, the representations and warranties of Buyer
shall mean such representations and warranties of Buyer made on and as of the
Closing Date after disregarding all knowledge qualifications of Buyer; or
9.4.2 The Assumed Obligations and any other liability,
obligation or debt of Buyer or the Stations that arises or results from and is
attributable to the operations or business of the Station on or after the
Closing Date excluding, however, any liability or obligation of Seller
specifically retained by Seller;
9.4.3 Any and all damages occasioned by, arising out of or
resulting from any claim by any person or entity that any agent, broker,
investment or commercial banker, person or firm acting on behalf of Buyer that
it is entitled to any broker, finder, financial advisor fee or any other
commission or similar fee directly or indirectly in connection with the
transaction contemplated by this Agreement.
Section 9.5 Indemnification Procedure. For purposes of administering
the indemnification provisions set forth in this Section 9, the following
procedure shall apply:
9.5.1 Whenever a Claim shall arise under this Article, the
party entitled to indemnification (the "Indemnified Party") shall promptly and
in no event later than ten (10) business days after becoming aware of such a
Claim, give written notice to the party from whom indemnification is sought (the
"Indemnifying Party") setting forth in reasonable detail, to the extent then
available, the facts concerning the nature of such Claim and the basis upon
which the Indemnified Party believes that it is entitled to indemnification
hereunder, provided that the Indemnified Party's failure to do so shall not
preclude it from seeking indemnification hereunder unless such failure has
materially prejudiced the Indemnifying Party's ability to defend such Claim.
28
9.5.2 In the event of any Claim hereunder resulting from or
in connection with any Claim brought by a third party, the Indemnifying Party
shall be entitled, at its sole expense, either:
9.5.2.1 to participate therein, or
9.5.2.2 to assume the entire defense thereof with
counsel who is selected by it and who is reasonably satisfactory to the
Indemnified Party provided that:
(a) the Indemnifying Party agrees in
writing that it does not and will not contest its responsibility for
indemnifying the Indemnified Party in respect of such Claim, and
(b) no settlement shall be made without
the prior written consent of the Indemnified Party which shall not be
unreasonably withheld (except that no such consent shall be required if the
claimant is entitled under the settlement to only monetary damages to be paid
solely by the Indemnifying Party). If, however,
(1) the Claim would, if
successful, result in the imposition of damages for which the Indemnifying Party
would not be solely responsible hereunder, or
(2) representation of both
parties by the same counsel would otherwise be inappropriate due to actual or
potential differing interests between them, then the Indemnifying Party shall
not be entitled to assume the entire defense and each party shall be entitled to
retain counsel (in the case of Clause (a) of this sentence, at their own
expense) who shall cooperate with one another in defending against such Claim.
9.5.3 If the Indemnifying Party does not choose to defend
against a Claim by a third party, the Indemnified Party may defend against such
Claim in such manner as it deems appropriate or settle such Claim (after giving
notice thereof to the Indemnifying Party) on such terms as the Indemnified Party
may deem appropriate, and the Indemnified Party shall be entitled to periodic
reimbursement of expenses incurred in connection therewith and prompt
indemnification from the Indemnifying Party, including without limitation
reasonable attorneys' fees, in accordance with this Article.
9.5.4 The Indemnifying Party will not, without the
Indemnified Party's
29
written consent, settle or compromise any Claim or consent to any entry of
judgment which does not include, as an unconditional term thereof, the giving by
the claimant to the Indemnified Party of a release from all liability with
respect to such Claim. Neither Buyer nor Seller shall be deemed to have notice
of any Claim by reason of any knowledge acquired on or prior to the Closing Date
by an employee of the Station unless express evidence is available establishing
actual notice to either party.
9.6 Limitations on Indemnification. Notwithstanding anything to
the contrary in this Article IX, (a) no claim for indemnification shall be made
by either Indemnified Party unless the aggregate Claims of such Indemnified
Party exceed Fifty Thousand Dollars ($50,000.00), in which event all Claims of
such party shall be recoverable hereunder; and (b) in no event shall an
Indemnifying Party's aggregate obligation to indemnify an Indemnified Party
exceed One Million One Hundred and Fifty Thousand Dollars ($1,150,000.00).
ARTICLE X
MISCELLANEOUS
Section 10.1 Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned on a date (the "Termination
Date") prior to the Closing Date, as follows:
(a) by mutual written agreement of Seller and Buyer; or
(b) by Buyer, provided Buyer is not in material breach of
this Agreement if: (i) any of the conditions set forth in Article VII of this
Agreement shall not have been fulfilled by the Closing Date; (ii) either Station
is off the air for ninety-six (96) consecutive hours or an aggregate of
one-hundred-forty (140) hours between the date of this Agreement and the Closing
Date for any reason other than as a result of the actions or omissions of Buyer,
its employees or agents); (iii) the FCC institutes revocation of license
proceedings against either of the Stations; or (iv) the FCC Authorizations are
materially modified as a result of any action without the written consent of
Buyer, which consent shall not be withheld unreasonably; or
(c) by Seller, provided Seller is not in material breach
of this Agreement, if any of the conditions set forth in Article VI of this
Agreement shall not have been fulfilled by the Closing Date; or
30
(d) by Buyer or Seller if Closing shall not have occurred
within one year of the date of this Agreement (unless the Closing is delayed in
accordance with Section 10.7); or
(e) by Buyer, if Buyer is not then in material breach of
this Agreement and Seller is then in material breach of this Agreement, and such
breach remains uncured within thirty (30) days after receipt of written notice
thereof from Buyer; or
(f) by Seller, if Seller is not then in material breach
of this Agreement and Buyer is then in material breach of this Agreement, and
such breach remains uncured within thirty (30) days after receipt of written
notice thereof from Seller.
Section 10.2 Buyer's Remedies - Specific Performance. The parties
acknowledge that each Station is of a special, unique and extraordinary
character, and that Buyer's ability to pursue damages alone would be an
inadequate remedy for a breach of this Agreement. In the event that Seller
(which shall for purposes of this Section 10.2(a) and (b) include Licensees) is
in a position to close because it has met all of its closing conditions or Buyer
has waived those closing conditions Seller has not met, and Buyer is ready,
willing and able to close but for Seller's refusal to close, at Buyer's
election, in addition to any other remedy available to it, Buyer shall, provided
Buyer is not in material breach of this Agreement, be entitled to an injunction
restraining any such breach or threatened breach and, subject to obtaining any
requisite approval of the FCC, to enforcement of this Agreement by a decree of
specific performance requiring Seller to fulfill its obligations under this
Agreement, in each case without the necessity of showing economic loss or other
actual damage and without any bond or other security being required.
In any action by Buyer to specifically enforce Seller's obligation to
close the transactions contemplated by this Agreement, Seller shall waive the
defense that there is an adequate remedy at law or in equity and agrees that the
Buyer shall be entitled to obtain specific performance of the Seller's
obligation to close without being required to prove actual damages.
Section 10.3 Expenses. Each party hereto shall bear all of its expenses
incurred in connection with the Subject Transactions including, without
limitation, accounting and legal fees incurred in connection herewith; provided,
however, that: (i) Seller and Buyer shall each pay one-half of the FCC filing
fees required to be paid in connection with the Application; (ii) Seller and
Buyer shall each pay one-half of any sales or transfer taxes (including, without
limitation, any real estate transfer taxes), arising
31
from the transfer of the Station Assets to Buyer; (iv) Seller and Buyer shall
each pay one-half of any Xxxx-Xxxxx-Xxxxxx filing fees, if applicable; and (v)
in any action to enforce a provision of this Agreement as provided herein, the
prevailing party shall be awarded reasonable attorneys' fees, expert and
non-expert witness costs and expenses, and other costs and expenses incurred in
connection with such action.
Section 10.4 Liquidated Damages. If (a) Seller terminates this
Agreement prior to Closing pursuant to Section 10.1 (f) and Buyer is in material
breach of this Agreement and shall not then have a right to terminate this
Agreement pursuant to the terms hereof, or if (b), as of the Closing Date, (i)
Seller shall have satisfied the conditions precedent to Closing by Buyer set
forth in Article VII, (ii) Buyer shall not then have a right to terminate this
Agreement pursuant to the terms hereof, and (iii) Buyer is in material breach of
this Agreement or Buyer shall fail or refuse to consummate the purchase and sale
contemplated by this Agreement, then in either case Seller shall be entitled, as
Seller's sole and exclusive remedy hereunder, to receive from Buyer, and Buyer
hereby agrees to pay to Seller One Million One Hundred Fifty Thousand Dollars
($1,150,000) as liquidated damages, it being understood and agreed that payment
to Seller of such liquidated damages will constitute full payment for any and
all damages suffered by Seller under this Agreement. The liquidated damages set
forth in this Section 10.4 shall be guaranteed by the Deposit set forth in
Section 1.5.
Section 10.5 Further Assurances. From time to time prior to, on and
after the Closing Date, each party hereto will execute all such instruments and
take all such actions as any other party shall reasonably request, without
payment of further consideration, in connection with carrying out and
effectuating the intent and purpose hereof and all Subject Transactions
including, without limitation, the execution and delivery of any and all
confirmatory and other instruments in addition to those to be delivered on the
Closing Date, and any and all actions which may reasonably be necessary to
complete the Subject Transactions. Seller shall cause Licensees to take any
actions which may reasonably be necessary to complete the Subject Transactions.
The parties shall cooperate fully with each other and with their respective
counsel and accountants in connection with any steps required to be taken as
part of their respective obligations under this Agreement.
Section 10.6 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 Subject Transactions, except (i) to announce it has
been entered into, and (ii) as and to the extent that such party shall be so
obligated by law, in which case such party shall
32
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.
(b) Notwithstanding the foregoing, the parties
acknowledge that the FCC Rules require that public notice of the Subject
Transactions be made after the Application has been filed with the FCC. The form
and substance of such public notice, to the extent not dictated by the FCC
Rules, shall be mutually agreed upon by Seller and Buyer.
Section 10.7 Risk of Loss. The risk of loss, damage or destruction to
any of the Station Assets shall be borne by Seller at all times up to 12:01 a.m.
on the Closing Date, and it shall be the responsibility of Seller to repair or
cause to be repaired and to restore the property to its condition prior to any
such loss, damage, or destruction. In the event of any such loss, damage, or
destruction, the proceeds of any claim for any loss, payable under any insurance
policy with respect thereto, shall be used to repair, replace, or restore any
such property to its former condition, subject to the conditions stated below.
In the event of any loss or damage to any of the Station Assets, Seller shall
notify Buyer thereof in writing immediately. Such notice shall specify with
particularity the loss or damage incurred, the cause thereof (if known or
reasonably ascertainable), and the insurance coverage. In the event that the
subject property is not completely repaired, replaced or restored on or before
the scheduled Closing Date, Buyer, at its option, may: (a) elect to postpone
Closing until such time as the property has been completely repaired, replaced
or restored (and, if necessary, Seller shall join Buyer in requesting from the
FCC any extensions of time in which to consummate the Closing that may be
required in order to complete such repairs); or (b) elect to consummate the
Closing and accept the subject property in its then-current condition, in which
event Buyer shall receive as a credit against the Purchase Price an amount equal
to the cost of completely repairing, replacing or restoring the Station Assets
provided Seller consents to the cost of such repair, replacement or restoration,
such consent not to be withheld unreasonably.
Section 10.8 Rescission of Agreement. If prior to becoming Final, the
FCC Consent is reversed or otherwise set aside, and there is a Final order of
the FCC (or court of competent jurisdiction) requiring the re-assignment of the
FCC Authorizations to Seller, then Seller and Buyer agree that the purchase and
sale of the Station Assets shall be rescinded. In such event, Buyer shall
reconvey to Seller the Station Assets, and Seller shall repay to Buyer the
Purchase Price and reassume the Assumed Contracts assigned and assumed by Buyer
at Closing. Any such rescission shall be consummated on a mutually agreeable
date within thirty (30) calendar days of such Final order (or, if earlier,
within the time required by such order). In connection therewith, Buyer and
Seller shall each execute such documents (including execution by Buyer of
instruments of
33
conveyance of the Station Assets to Seller and execution by Seller of
instruments of assumption of the Assumed Contracts assigned and assumed at
Closing) and make such payments (including repayment by Seller to Buyer of the
Purchase Price) as are necessary to give effect to such rescission. Seller's and
Buyer's obligations under this Section 10.8 shall survive the Closing.
Section 10.9 Application for FCC Consent. As soon as possible (but in
no event later than ten (10) business days after the date of this Agreement),
Seller, Licensees, and Buyer shall cooperate and join together in filing the
Application. Seller and Licensees shall furnish all information required by the
FCC and they and Buyer shall have the right to be represented at all meetings or
hearings scheduled to consider the Application. The FCC's written consent to the
Application is referred to herein as the "FCC CONSENT." Seller's obligations
under this Section 10.9 shall survive the Closing until the FCC Consent becomes
Final. For purposes of this Agreement, the term "FINAL" shall mean that action
shall have been taken by the FCC (including action duly taken by the FCC's
staff, pursuant to delegated authority) which shall not have been reversed,
stayed, enjoined, set aside, annulled or suspended; with respect to which no
timely request for stay, petition for rehearing, appeal or certiorari or sua
sponte action of the FCC with comparable effect shall be pending; and as to
which the time for filing any such request, petition, appeal, certiorari or for
the taking of any such sua sponte action by the FCC shall have expired or
otherwise terminated. Upon written request of Buyer, Seller and Licensees shall
take all steps necessary, proper or desirable to obtain extension(s) of the FCC
Consent; provided, however, that except as provided in Section 10.7. neither
Seller nor any of the Licensees shall be obligated to request an extension of
the FCC Consent to a date beyond the Termination Date.
Section 10.10 Non-Assignable Contracts. Nothing contained in this
Agreement shall be construed as an assignment or an attempted assignment of any
contract which is by law non-assignable without the consent of the other party
or parties thereto, unless such consent shall be given.
Section 10.11 Employee Control. All employees of the Stations shall be
and remain Seller's employees, with Seller having full authority and control
over their actions, and Buyer shall not assume the status of an employer or a
joint employer of, or incur or be subject to any liability or obligations of an
employer with respect to, any such employees. For purposes of this paragraph,
employees of Buyer who perform work at the Station's facilities shall not be
deemed employees of the Station or Seller.
34
ARTICLE XI
GENERAL PROVISIONS
Section 11.1 Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall be binding upon and inure to the benefit
of the parties hereto, and their respective representatives, successors and
assigns. Neither Seller nor any of the Licensees may assign any of their rights
or delegate any of their duties hereunder without the prior written consent of
Buyer, and any such attempted assignment or delegation without such consent
shall be void. Buyer may assign its rights and obligations hereunder in whole or
in part to any company controlled by Buyer without Seller's consent.
Section 11.2 Amendments; Waivers. The terms, covenants,
representations, warranties and conditions of this Agreement may be changed,
amended, modified, waived, or terminated only by a written instrument executed
by the party waiving compliance. The failure of any party at any time or times
to require performance of any provision of this Agreement shall in no manner
affect the right of such party at a later date to enforce the same. No waiver by
any party of any condition or the breach of any provision, term, covenant,
representation or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances shall be deemed to be or construed as a
further or continuing waiver of any such condition or of the breach of any other
provision, term, covenant, representation or warranty of this Agreement.
Section 11.3 Notices: All communications or notices required or
permitted by this Agreement shall be in writing and shall be deemed to have been
given (i) on the date of personal delivery to an officer of the other party, or
(ii) if sent by facsimile machine to the facsimile number shown below, on the
date of such confirmed facsimile transmission, provided a copy is also sent by
commercial overnight delivery service, prepaid, to the address shown below (or
to such changed facsimile number or address provided by notice in accordance
with this Section 11.3):
If to Buyer: Xxxxxx Xxxxxx
Border Media Partners, LLC
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
FAX: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0000 Xxx Xxxx Xxx., XX
00
Xxxxxxxxxx, X.X. 00000
FAX: (000)000-0000
If to Seller: Spanish Broadcasting System, Inc.
0000 X. Xxxxxxxx Xxxxx, XXXX
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
FAX: (000)000-0000
With a copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
FAX: (000)000-0000
Section 11.4 Captions; References. The captions of Articles and
Sections of this Agreement are for convenience only and shall not control or
affect the meaning or construction of any of the provisions of this Agreement.
References to an "ARTICLE" OR "SECTION" when used without further attribution
shall refer to the particular article or section of this Agreement. The term
"best knowledge" shall mean actual knowledge of an officer or director of Seller
or knowledge that a prudent officer or director could have obtained in the
operation of the Seller's business.
Section 11.5 Governing Law. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement shall be governed
by and construed in accordance with the laws of the State of Texas, without
giving effect to principles of conflicts of laws.
Section 11.6 Arbitration. Any dispute, controversy or other matters
arising out of, relating to or in connection with the provisions of this
Agreement or the interpretation, breach or alleged breach hereof shall be
settled and decided by arbitration conducted by the Judicial Arbitration and
Mediation Service ("JAMS"), subject to the following:
11.6.1 Any arbitration as set forth above shall be held and
conducted in Dallas, Texas before one arbitrator who shall be selected by mutual
agreement of the parties. If agreement is not reached on the selection of the
arbitrator within 30 days after commencement of an arbitration by (i) submission
of a matter to the JAMS in accordance with its Commercial Arbitration Rules and
(ii) notice to the other party of the initiating party's intention to arbitrate,
then such arbitrator
36
shall be appointed by the presiding judge of the appropriate court in
Dallas, Texas.
11.6.2 The arbitrator appointed must be a former or retired
judge, or an attorney with at least 15 years experience in the radio
broadcast industry.
11.6.3 All proceedings involving the parties shall be
reported by a certified shorthand court reporter and written
transcripts of the proceedings shall be prepared and made available to
the parties.
11.6.4 The prevailing party shall be awarded reasonable
attorneys' fees, expert and non-expert witness costs and expenses, and
other costs and expenses incurred in connection with the arbitration
unless the arbitrator, for good cause, determines otherwise.
11.6.5 The dispute shall be heard in accordance with the
rules and procedures of JAMS and the arbitrator's decision and award
shall be final and binding.
11.6.6 Costs and fees of the arbitrator (including the cost
of the record of transcripts of the arbitration) shall be borne by the
non-prevailing party, unless the arbitrator for good cause determines
otherwise. Costs and fees payable in advance shall be advanced equally
by the parties, subject to ultimate payment by the non-prevailing party
in accordance with the preceding sentence.
11.6.7 Any Party may initiate an arbitration proceeding
under this Section 11.6 by written notice to the other Party of his or
its intention to arbitrate, specifying the dispute or controversy to be
arbitrated, the amount involved and the remedy sought, and by filing
with the Dallas, Texas office of JAMS a copy of said notice together
with a copy of this Agreement and the fee specified in the JAMS fee
schedule. In no event shall a demand for arbitration be made after the
date when institution of legal or equitable proceedings based on the
claim, dispute or other matter in question would be barred by the
applicable statute of limitations.
11.6.8 This agreement to arbitrate shall be specifically
enforceable under applicable law in any court of competent
jurisdiction. The award rendered by the arbitrator shall be final and
judgment may be entered in accordance with applicable law and in any
court having jurisdiction thereof.
11.6.9 Notwithstanding anything contained in this Agreement
elsewhere to the contrary, and unless modified by the arbitrator upon a
showing of good cause, the arbitration shall proceed upon the following
schedule: (i) within 30 days from the service of the notice
37
of the request to arbitrate, the parties shall select the arbitrator;
(ii) within 30 days after selection of the arbitrator, the parties
shall conduct a pre-arbitration conference at which a schedule of
pre-arbitration discovery shall be set, all pre-arbitration motions
scheduled and any other necessary pre-arbitration matters decided;
(iii) all discovery shall be completed within four months following the
pre-arbitration conference; (iv) all pre-arbitration motions shall be
filed and briefed so that they may be heard no later than one month
following the discovery cut-off; (v) the arbitration shall be scheduled
to commence no later than 30 days after the decision on all
pre-arbitration motions but in any event no later than six months
following the service of the notice of arbitration; and (vi) the
arbitrator shall render his written decision within 30 days following
the submission of the matter.
11.6.10 Any monetary award of the arbitrator may include
interest at the highest prime rate, as published in the Wall Street
Journal, plus two percent, which interest shall accrue from the date
the claim, dispute or other matter in question was rightfully due and
payable under this agreement until the date the award is paid to the
prevailing party. The arbitrator may also grant such equitable relief
as the arbitrator deems appropriate.
11.6.11 No provision of this Section 11.6 shall limit the
right of any Party to this Agreement to exercise self-help remedies or
to obtain provisional or ancillary remedies from a court of competent
jurisdiction before, after, or during the pendency of any arbitration
or other proceeding. The exercise of such remedy does not waive the
right of any party to resort to arbitration.
Section 11.7 Entire Agreement. This Agreement, together with all
Exhibits and Schedules attached hereto, constitute the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof, and supersede all prior agreements, understandings, inducements
or conditions, express or implied, oral or written, relating to the subject
matter hereof. The express terms hereof control and supersede any course of
performance and/or usage of trade inconsistent with any of the terms hereof.
This Agreement has been prepared by all of the parties hereto, and no inference
of ambiguity against the drafter of a document therefore applies against any
party hereto.
Section 11.8 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the
38
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
Section 11.9 Interpretation. Should any provision of this Agreement
require interpretation by an arbitrator, the parties hereto agree that the court
interpreting or construing the same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be construed more strictly against the
party which itself or through its agent prepared the same, it being agreed that
the agents of each party have participated in the preparation hereof.
Section 11.10 Severability. In the event that one or more provisions of
this Agreement are held to be unenforceable under applicable law, such provision
shall automatically be replaced with one that incorporates the original intent
of the parties to the maximum extent permitted by law and the balance of the
Agreement shall be enforced in accordance with its terms.
Section 11.11 No Joint Venture. No provision of this Agreement shall
create a joint venture between the parties hereto.
Section 11.12 No Third Party Beneficiaries. No provision of this
Agreement shall confer upon any person other than the parties hereto any rights
or remedies hereunder.
[SIGNATURE PAGE FOLLOWS]
39
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
BUYER: BORDER MEDIA PARTNERS, LLC
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxx, President, CEO, &
Vice Chairman of its Board of Managers
SELLER: SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxx Xxxxxxx, Xx.
----------------------------------------
Xxxx Xxxxxxx, Xx., President
40
