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EXHIBIT 10.34
FORM OF ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of August __,
1999, by and between Spanish Broadcasting System of Florida, Inc.,a Florida
corporation ("Seller"), and __________________, a _____________ corporation
("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is the licensee of and owns and operates radio
stations WZMQ(FM), Key Largo, Florida and WVMQ(FM), Key West, Florida
(collectively, "Stations"), and related licenses and authorizations pursuant to
licenses issued by the Federal Communications Commissions ("FCC"); and
WHEREAS, Seller desires to sell certain properties and assets
pertaining to the Stations, and Buyer desires to purchase the same, all subject
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, Seller and Buyer agree as follows:
SECTION 1. PURCHASE AND SALE OF PROPERTIES AND ASSETS.
(a) STATIONS' ASSETS. Subject to and in reliance upon the
representations, warranties and agreements set forth herein, and subject to the
terms and conditions contained herein, on the Closing Date (as defined in
Section 4), Seller agrees to convey, sell, assign, transfer and deliver to
Buyer, and Buyer agrees to purchase, accept, assume and, as the case may be,
perform the following (collectively, the "Stations' Assets"):
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(i) LICENSES AND AUTHORIZATIONS. The licenses, permits and
authorizations of the FCC listed on Schedule A attached hereto, together with
any renewals, extensions or modifications thereof and additions thereto made
between the date of this Agreement and the Closing Date (collectively, the
"Licenses"), and the rights of Seller in and to the call letters "WVMQ(FM)" and
"WZMQ(FM)".
(ii) AGREEMENTS, ETC. The business agreements, leases and
contracts listed individually or by category on Schedule B attached hereto,
including any renewals, extensions, amendments or modifications thereof.
(iii) COPYRIGHTS, ETC. All copyrights, trademarks, service
marks or other similar rights or modifications thereto listed on Schedule C
attached hereto, made by Seller in the ordinary course of business between the
date of such schedule and the Closing Date.
(iv) PERSONAL PROPERTY. All good will and all general
intangibles and the tangible personal property owned by the Seller and used or
useful in the operation of the Stations listed on Schedule D attached hereto.
(v) REAL PROPERTY. All of Seller's right, title and interest
in the real property leases described on Schedule E attached hereto.
(vi) PUBLIC FILE. The Stations' local public inspection file
together with all its contents.
(b) EXCLUDED ASSETS. It is understood that no corporate records,
accounts receivable, bank deposits, other cash equivalents and/or investment
securities, contracts of insurance and insurance proceeds of settlement and
revenue claims made by Seller relating to property, equipment repaired, replaced
or restored by Seller prior to the Closing Date, unless
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otherwise specified herein (all of which are hereinafter referred to as
"Excluded Property") shall be sold, conveyed or assigned hereunder.
(c) LIENS. Seller agrees that the Stations' Assets to be conveyed on
the Closing Date pursuant to this Agreement will be conveyed free and clear of
all liens, charges, claims, adverse interests and encumbrances of any kind
whatsoever owed to, owned by, accruing to or in favor of any person whatsoever.
(d) LIABILITIES TO BE ASSUMED. Except as otherwise expressly
provided in this Agreement and as described on Schedule B attached hereto, Buyer
will not assume, incur or be charged with, in connection with the transactions
contemplated herein, any liabilities or obligations of any nature whatsoever,
contingent or otherwise arising prior to the Closing or liabilities or
obligations of Seller in connection with the Closing.
SECTION 2. PURCHASE PRICE. The aggregate purchase price to be paid
to Seller by Buyer shall be One Million Dollars ($1,000,000.00) ("Purchase
Price") payable as follows:
(a) Upon the execution of this Agreement, Buyer will deposit with
__________________________ as Escrow Agent, an escrow deposit ("Escrow Deposit")
in the amount of Fifty Thousand Dollars ($50,000) to be held in escrow and
deposited in a special interest bearing escrow account and which shall be
delivered by said Escrow Agent to Seller at the Closing hereunder to be applied
to the Purchase Price pursuant to the terms and conditions set forth in the
Escrow Agreement attached hereto as Exhibit 1. The interest earned on the Escrow
Deposit shall be the property of Buyer and paid over to Buyer at the closing of
the transactions contemplated herein (the "Closing"). In the event that Buyer
defaults under this Agreement, the Escrow Deposit shall be forfeited to Seller
as liquidated damages. In the event
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that there is no Closing of this Agreement and the Buyer is not in default, the
Escrow Deposit, plus interest earned thereon, shall be returned to Buyer.
(b) On the Closing Date, Buyer shall pay to Seller by wire transfer
of federally available funds the sum of One Million Dollars ($1,000,000.00).
SECTION 3. ADJUSTMENTS AND ASSUMPTIONS. The operation of the
Stations, and the cash income and the expenses attributable thereto, up to 12:01
A.M. on the Closing Date (the "Adjustment Time") shall be for the account of
Seller and thereafter shall be for the account of Buyer. Expenses such as power
and utility charges, lease rents, frequency discounts, prepaid time sales
agreements, wages, commissions, vacation pay, payroll taxes and fringe benefits
or employees of the Seller who enter the employment of Buyer, and similar
prepaid and deferred items shall be prorated between the Seller and Buyer. All
prorations shall be made and paid [insofar as feasible] on the Closing date,
with a final settlement within ninety (90) days after the Closing Date.
SECTION 4. THE CLOSING.
(a) FCC CONSENT. Consummation of the transactions contemplated
hereunder is conditioned upon the FCC having given its consent in writing to the
assignment to Buyer of the FCC licenses and other authorizations set forth in
subparagraph 1(a) hereof, and said consent becoming final. For purposes of this
Agreement, such consent shall be deemed final when it is no longer subject to
timely review by the FCC or by any court or, in the event of reconsideration
upon its own motion or otherwise by the FCC to an appeal by any person to any
court, upon the decision of such body becoming no longer subject to review. In
all events, the Closing shall take place on a date not later than three (3) days
from June 30, 2000 ("Outside Closing Date").
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(b) FCC APPLICATION. On or before September 15, 1999, the parties
shall file an application requesting FCC consent to the transactions involved
herein. The parties hereto shall each bear their own legal fees and any and all
costs and expenses not specified herein with respect to the sale and purchase of
the assets covered by this Agreement. All FCC filing fees shall be paid by
Seller.
(c) FAILURE OF FCC CONSENT. If the FCC has failed or refused to
grant its consent to the assignment of the Licenses (as hereinafter defined) for
a period of longer than nine months following the filing of the application, or
if the application for consent to assignment of the Licenses is designated for
hearing, Buyer may terminate this Agreement upon ten (10) days prior written
notice to Seller, provided that the Buyer is not in material default or breach
at the time of said notice. In no event shall the Closing take place later than
the Outside Closing Date, unless mutually agreed to by the parties. The
termination pursuant to this subsection shall not relieve either party of any
liability previously incurred because of a party being in material default
pursuant to the terms and conditions of this Agreement.
(d) CLOSING. The date of the Closing and the time thereof (herein
referred to as the "Closing Date"), shall be set by Seller. The Closing shall
take place at the office of Seller.
(e) CONTROL OF THE STATIONS AND ACCESS TO INFORMATION. Until the
Closing, Seller shall have complete control of the Stations, their equipment and
operation. Buyer shall be entitled, however, to reasonable inspection during
normal business hours of the Stations' premises and Stations' Assets.
SECTION 5. SELLER'S REPRESENTATIONS AND WARRANTIES.
Seller represents, warrants and agrees now and as of the Closing as follows:
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(a) DUE INCORPORATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida,
and has the full power and authority to own the Stations' Assets and to carry on
the business of the Stations as now being conducted.
(b) AUTHORIZATION OF AGREEMENT; NO BREACH. The execution, delivery
and performance of this Agreement has been duly and validly authorized and
approved by Seller's Board of Directors and Stockholders, and Seller has the
full corporate power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. Neither such
execution, delivery and performance nor compliance by Seller with the terms and
provisions hereof will (assuming receipt of all necessary approvals from the
FCC) conflict with or result in a breach of any of the terms, conditions or
provisions of the Articles of Incorporation or By-Laws of Seller or any
judgment, order, injunction, decree, law, regulation, rule or ruling of any
court or other governmental authority to which Seller is subject.
(c) LICENSES AND AUTHORIZATIONS. Schedule A attached hereto includes
a true and complete list of the Licenses and any other licenses, permits, and
authorizations of any governmental or regulatory authority currently held by the
Seller for the Stations. The Licenses constitute all of the licenses and
authorizations used in the operation of the Stations as now operated and the
Licenses are now and on the Closing Date will be in full force and effect and
with no material impairment by any act or omission of the Seller. There is not
now pending or, to the knowledge of Seller, threatened, any action by or before
the FCC to revoke, cancel, rescind, modify, or refuse to renew any of the
Licenses, or any investigation, order to show cause, notice of violation, notice
of apparent liability of forfeiture or material complaint against Stations or
Seller. In the event of any such action, or the filing or issuance of any order,
notice or
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complaint or knowledge of the threat thereof, Seller shall notify Buyer of same
in writing within five (5) business days, and shall take all reasonable measures
to contest in good faith or seek removal or recession of such action, order,
notice or complaint, and shall pay any sanctions imposed. All material reports,
forms, and statements required to be filed by Seller with the FCC with respect
to the Stations have been filed and are complete and accurate in all material
respects. Stations are now and on the Closing Date will be operating with the
Licenses and in compliance with the Communications Act of 1934, as amended, and
the rules and policies of the FCC.
(d) PERSONAL PROPERTY. Schedule D attached hereto contains a
complete and accurate list, as of the date hereof, of all material tangible
personal property and interests therein owned by Seller and used by it in the
operation of the Stations and the conduct of their business, except as disclosed
in such schedule. The tangible assets included in the Personal Property listed
on Schedule D attached hereto are now and will, on the Closing Date, be in
proper operating condition, normal wear and tear excepted, and will permit the
Stations to operate in accordance with the Rules and Regulations of the FCC and
in accordance with the Stations' Licenses. Between the date hereof and the
Closing Date, Seller will not transfer, convey or assign to any other person,
any of the Personal Property unless, in the case of tangible assets included in
the Personal Property, the same are replaced by assets of equal quality and
usefulness.
(e) LEASES AND OTHER AGREEMENTS. Schedule D attached hereto contains
a complete and accurate list of, or reference to, as of the date hereof, all
real estate leases, business agreements, leases and contracts of Seller (except
for music license agreements) relating to the assets or operations of the
Stations. The agreements, leases and contracts listed on Schedule B attached
hereto constitute valid and binding obligations of Seller and, to the best of
Sellers's
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knowledge, of all other persons purported to be parties thereto and are in full
force and effect as of the date hereof.
(f) NO LITIGATION. There is as of the date hereof no suit (at law or
in equity), action, legal or administrative, arbitration or other proceeding or
governmental investigation pending or as to which Seller has received notice
which could, individually or in the aggregate, materially adversely affect the
title or interest of Seller in any of the Stations' Assets or the operation of
the Stations and conduct of their business.
(g) USE OF PREMISES. The occupancy and use of all leases or owned
real property and the occupancy, use and placement of all structure thereon, are
not at the present time, in violation in any material respect of any laws,
zoning regulations, ordinances, orders or requirement of any federal, state or
local governmental authority or in conflict with the rights of any other party
therein or thereon.
(h) PUBLIC FILE.Seller maintains a public file for the Stations
which will contain all material required by the Rules and Regulations of the FCC
on the Closing Date. Seller shall deliver to Buyer at the Closing the public
file for the Stations.
(i) INSURANCE. There is presently in force fire and liability
insurance with respect to the properties and assets to be transferred and
conveyed hereunder. Seller will maintain or cause to be maintained such
insurance in full force until the Closing hereunder.
(j) EMPLOYMENT BENEFIT PLANS. Seller does not maintain, or have any
present or future obligation or liability with respect to any bonus, deferred
compensation, pension, profit-sharing, retirement, severance pay, insurance,
stock purchase, stock option, or other fringe benefit plan, as defined in
Section 3(d) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), whether formal or informal.
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(k) LABOR RELATIONS, TERMS AND CONDITIONS OF EMPLOYMENT. Seller has
not recognized and has received no demand for recognition by any collective
bargaining representative. Seller has substantially complied with and is not in
default in any material respect under any laws, rules and regulations relating
to employment of labor, including those relating to wages, hours, equal
employment opportunities, employment of protected minorities (including women
and persons over 40 years of age), collective bargaining and the withholding and
payment of taxes and contributions and has withheld all amounts required or
agreed to be withheld from wages and salaries of its employees, and is not
liable for any arrearage or wages or for any tax or penalty or failure to comply
with the foregoing.
(l) TAXES. Seller has filed all federal, state, and local tax
returns required by law and has paid all taxes, estimated taxes, interest,
assessments, and penalties due and payable. There are no present disputes as to
taxes of any nature payment by Seller which in any event could affect any of the
Stations' Assets or the operation of the Stations.
SECTION 6. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents,
warrants and agrees now and as of the date of Closing as follows:
(a) AUTHORITY AND DUE ORGANIZATION. Buyer will be a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida. Buyer has all requisite power and authority to own its property and to
carry on its business as and where now conducted. Buyer has all requisite power
and authority to enter into, perform, and carry out the transactions
contemplated by this Agreement, and to execute, perform and carry out the terms
and conditions of all documents and instruments executed in connection herewith.
All signatures appearing for Buyer at the end of this Agreement are true and
genuine, and this Agreement and all other documents or instruments executed by
Buyer in connection herewith have been duly
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authorized by all necessary corporate action and constitute the legal, valid and
binding obligations of Buyer, enforceable in accordance with their respective
terms.
(b) QUALIFICATION. Buyer has no knowledge of any facts which would,
under present law (including the Communications Act of 1934, as amended) and
present rules, regulations and practices of the FCC, disqualify Buyer as an
assignee of the licenses, permits and authorizations listed on Schedule A
attached hereto, or as an owner and/or operator of the Stations' Assets, and
Buyer will not take, or unreasonably fail to take, any action which Buyer knows
or has reason to know would cause such disqualification. Buyer is financially
qualified and able to meet all financial undertakings contracted for herein.
(c) LITIGATION. There is no litigation or proceeding threatened or
pending against Buyer that would affect Buyer's ability to carry out this
Agreement.
SECTION 7. PERFORMANCE BY BUYER. The obligations of Buyer hereunder
are subject to the conditions that:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Agreement shall be true and correct at
the time of the Closing as though made at and as of such time, and each and all
of the agreements of the Seller to be performed on or prior to the Closing
pursuant to the terms of this Agreement shall have been duly performed, and
Seller shall have delivered to Buyer certificates, dated as of the Closing Date,
signed by a corporate officer to such effect.
(b) LITIGATION, ETC. No litigation, investigation or proceeding of
any kind shall have been instituted or threatened or be pending which would
materially adversely affect or relate to the Stations' Assets or the business or
operations of the Stations.
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(c) FCC LICENSES. At the Closing, the Licenses shall be assigned and
transferred to Buyer, and such Licenses shall be free and clear of conditions
which would have a material adverse consequence to the operation of the Stations
as presently authorized.
(d) CONSENTS. All consents of third parties that are required for
the valid and binding assignment from Seller to Buyer of the Stations'
contracts, leases of business agreements needed to permit the operation of the
Stations in all material respects in the same manner as heretofore or that are
required shall be in full force and effect as of the Closing.
(e) LEGAL OPINION. Buyer shall have received an opinion of counsel
for Seller, dated the Closing Date, in form and content reasonably acceptable to
Buyer's counsel to the effect that:
(i) Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Florida.
(ii) Seller has full power and authority to enter into and
perform this Agreement and the transactions contemplated hereby. Seller has
taken all actions necessary to authorize the execution, delivery and performance
of this Agreement. This Agreement has been duly executed and delivered by Seller
and is the valid and binding obligation of Seller enforceable in accordance with
its respective terms.
(iii) The execution, delivery and performance of this
Agreement by Seller does not and will not, with the passage of time or the
giving of notice or both, contravene the Articles of Incorporation or By-Laws of
the Seller or to the best of such counsel's knowledge after due inquiry,
conflict with or result in a breach, termination or modification of, or a
default under any contract, instrument, authorization, license, permit, lease,
easement, arrangement or understanding to which Buyer is a party or result in
the violation of any law of any order, writ,
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injunction, judgment, decree, rule or regulation of any court, administrative
agency or governmental body.
(iv) Seller is the authorized legal holder of the Licenses
listed on Schedule A attached hereto. The Licenses are in full force and effect
to the full extent to which they can be lawfully held under the rules and
regulations of the Commission. To the best of such counsel's knowledge, except
for administrative rulemaking proceedings of general applicability to the
broadcasting industry, (i) there is no litigation, proceeding or investigation
of any nature pending against Seller or the Stations affecting Seller or the
Stations which may result in a materially adverse effect upon the Stations of
the business or operation of the Stations or which seeks to enjoin, prohibit or
otherwise challenge the transactions contemplated by this Agreement and (ii) no
judgment, award, order or decrees has been rendered against or affecting Seller
or the Stations which would result in a materially adverse effect upon the
Stations or the business or operation of the Stations.
(f) INITIAL PUBLIC OFFERING. Seller's Initial Public Offering
("IPO") shall have been consummated and Raul Alarcon, Sr. shall have received
all payments due to him from the proceeds of the IPO as well as any and all
other related benefits in accordance with the terms of his agreements with
Seller.
SECTION 8. SELLER'S PERFORMANCE. Seller's performance is subject to:
(a) PAYMENTS, ETC. All payments due to Seller from Buyer as provided
for herein in Section 2 shall have been made in accordance with the terms of
this Agreement.
(b) REPRESENTATIONS AND WARRANTIES. Each of Buyer's representations
and warranties contained herein shall, to the extent applicable, be true at the
time of the Closing, as
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though made at and as of such time and Buyer shall have delivered to Seller
certificates, dated as of the Closing Date, signed by a corporate officer to
such effect.
(c) PERFORMANCE. Buyer shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with prior to or at the Closing hereunder.
(d) LITIGATION. No litigation, investigation or proceeding of any
kind shall have been instituted or threatened which would adversely affect the
financial condition of Buyer to comply with the provisions of this Agreement.
(e) LEGAL OPINION. Seller shall have received an opinion of counsel
for Buyer, dated the Closing Date, in form and content reasonably acceptable to
Seller's counsel to the effect that:
(i) Buyer is duly organized, validly existing, in good
standing and qualified to do business under the laws of the State of Florida,
and has all requisite power and authority to conduct business and operations as
currently conducted.
(ii) Buyer has all requisite power and authority to execute,
deliver and perform under this Agreement and to perform and carry out the
transactions contemplated by this Agreement. Buyer has duly taken all actions
necessary to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly executed and delivered by Buyer and
ratified by Buyer's corporation, and is the valid and binding obligations of
Buyer and Buyer's corporation enforceable against each in accordance with its
respective terms.
(iii) The execution, delivery and performance of this
Agreement by Buyer and as ratified by Buyer's corporation does not and will not,
with the passage of time or the giving of notice or both, contravene the
Articles of Incorporation of Buyer's corporation or,
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to the best of our knowledge after due inquiry, conflict with or result in a
breach, termination or modification of, or a default under any contract,
instrument, authorization, license, permit, lease, easement, arrangement or
understanding to which Buyer or Buyer's corporation is a party or result in the
violation of any law or of any order, writ, injunction, judgment, decree, rule
or regulation of any court, administrative agency or governmental body.
(iv) No consent, approval or authorization of any person, or
any state, local or federal governmental authority, not already obtained and no
certificate, notice, application, report or other document required to be filed
with any state, local or federal governmental authority which as not already
been filed, is required to be obtained or filed prior to or on the Closing Date
for the execution and delivery of the Agreement by Buyer and its ratification by
Buyer's corporation, or the consummation of the transactions contemplated
thereby.
(v) There is no legal action, proceeding or investigation
pending or, to the best of our knowledge after due inquiry, threatened, before
any court or other governmental body or agency to which Buyer or Buyer's
corporation is a party, nor is there any judgement, order, writ, injunction or
decree outstanding against Buyer or Buyer's corporation or by which Buyer or
Buyer's corporation is subject, bound or affected nor, to the best of Buyer's
knowledge, after due inquiry, is there any basis for any such legal action,
proceeding, investigation or controversy.
(f) CONSENTS. Buyer and Buyer's corporation shall have used their
respective best efforts consistent with commercial reasonableness to assist
Seller in obtaining, prior to the Closing Date, all consents and approvals
required, if any, for the assignment of the contracts,
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leases and business agreements to be assigned hereunder by Seller to Buyer's
corporation at Closing.
SECTION 9. RIGHTS OF INDEMNIFICATION.
(a) It is understood and agreed that Buyer does not assume and shall
not be obligated to pay, any liabilities of the Seller under the terms of the
Agreement or otherwise, and it shall not be obligated to perform any obligations
of the Seller, of any kind or manner except by reason of the contracts, leases
and business agreements expressly assigned to and assumed by Buyer hereunder.
The Seller hereby agrees to indemnify and hold Buyer and its successors and
assigns (collectively, "Indemnified Parties", and individually, an "Indemnified
Party") harmless for a period of one (1) year from the Closing Date, from and
against:
(i) Any and all damage of deficiency resulting from any
misrepresentation, breach of warranty, or non-fulfillment of any agreement on
the part of the Seller under this Agreement, or from any misrepresentation in or
omission from any certificate or other instrument furnished to any Indemnified
Party pursuant to this Agreement or in connection with any of the transactions
contemplated hereby; and
(ii) Any and all actions, suits, proceeding, damages,
assessments, judgments, costs and expenses, including reasonable attorney's fees
incurred by any Indemnified Party as a result of the failure or refusal of
Seller to compromise or defend any claim incident to, or otherwise fail to
comply with, the foregoing provisions.
(b) If any claim or liability shall be asserted against any
Indemnified Party which would give rise to a claim by such Indemnified Party
against Seller for indemnification under the provisions of this Section, such
Indemnified Party shall promptly notify the Seller in
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writing of the same and give all reasonable cooperation in the defense thereof
and the Seller shall be entitled at its own expense to compromise or defend any
such claim.
(c) Buyer hereby agrees to indemnify and hold the Seller and its
successors and assigns harmless, for a period of one (1) year from the Closing
Date, from and against:
(i) Any and all claims, liabilities and obligations of every
kind and description, contingent or otherwise arising from or related to the
ownership or operation of the Stations subsequent to the Closing hereunder
including, but not limited to, any and all claims, liabilities and obligations
arising or required to be performed subsequent to the Closing hereunder under
any contract or instrument assumed by Buyer hereunder.
(ii) Any and all damage or deficiency resulting from any
misrepresentation, breach of warranty, non-fulfillment of any agreement or
obligation assumed or required to be assumed by Buyer under this Agreement or
from any misrepresentation in or omission from any certificate or other
instrument furnished to the Seller pursuant to this Agreement, or in connection
with any of the transactions contemplated hereby.
(iii) Any and all actions, suits, proceedings, damages,
assessment, judgments, costs and expenses, including reasonable attorney's fees
incurred by Seller as the result of the failure or refusal by Buyer to defend or
compromise any claim incident to, or otherwise fail to comply with, any of the
foregoing provisions.
(d) If any claim or liability shall be asserted against the Seller
which would give rise to a claim by the Seller against Buyer for indemnification
under the provisions of this section, the Seller shall promptly notify Buyer of
the same and give all reasonable cooperation in the defense thereof and Buyer
shall be entitled at its own expense to compromise or defend any such claim.
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SECTION 10. RISK OF LOSS. The risk of any loss, damage or
destruction to any of the Stations' Assets to be transferred hereunder from fire
or other casualty or cause shall be borne by the Seller at all times prior to
the Closing Date hereunder excepting that caused by Buyer.
SECTION 11. SELLER'S PERFORMANCE AT CLOSING. At the closing
hereunder, the Seller will:
(a) FCC LICENSES. Deliver to Buyer assignments of the licensees and
other pertinent authorizations set forth on Schedule A attached hereto,
transferring the same to Buyer in customary form and substance.
(b) PERSONAL PROPERTY. Deliver to Buyer a bill of sale and all other
appropriate documents and instruments in customary form and substance assigning
good and marketable title to all personal property described in Schedule D
attached hereto, free and clear of any mortgages, liens, attachments,
conditional sales contracts, claims or encumbrances of any kind whatsoever.
Seller shall pay all state and local sales tax, if any, due upon such transfer.
(c) ASSIGNMENT OF AGREEMENTS. Deliver to Buyer such assignments and
further instruments of transfer a Buyer may reasonably require to effectuate the
assignments to it of those business contracts, leases and agreements to be
assigned to it as set on Schedule B attached to this Agreement.
(d) ADJUSTMENTS AND PAYMENT. If the adjustments and assumptions
provided for in Section 3 hereof result in a net amount owing by the Seller to
Buyer, deliver a good check, subject to collection, at the Closing Date.
(e) RESOLUTIONS, ETC. Deliver to Buyer a certified copy of a
resolution of the Seller's Board of Directors and stockholders authorizing the
execution of this Agreement and the
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consummation of the transactions described herein, together with all other
consents and approvals which counsel for Buyer may reasonable request.
(f) OTHER DOCUMENTS. Deliver to Buyer such other documents as
counsel for Buyer may reasonably request for the purpose of consummating the
transactions described herein.
SECTION 12. BUYER'S PERFORMANCE AT CLOSING. At the closing:
(a) PAYMENTS, ETC. Buyer will cause to be delivered to Seller all
monies from Buyer as provided for in this Agreement.
(b) ASSUMPTION. Buyer will assume the contracts, leases and business
agreements set forth on Schedule B attached hereto.
(c) ADJUSTMENTS AND PAYMENT. Buyer will, if the adjustments and
assumptions provided for in Section 3 hereof result in a net amount owing to the
Seller by Buyer, deliver a good check, subject to collection, at the Closing.
(d) OPINION. Deliver the written opinion of its counsel, dated as of
the Closing Date, pursuant to the provisions of this Agreement.
(e) OTHER DOCUMENTS. Deliver to the Seller such other documents as
counsel for Seller may reasonably request for the purpose of consummating the
transactions described herein.
SECTION 13. DEFAULT.
(a) In the event of a material breach by Buyer prior to the Closing
of any term or condition of this Agreement or any warranty or representation
contained herein, Seller may terminate this Agreement and retain as its sole
property the Fifty Thousand Dollar ($50,000.00) Escrow Deposit. It is understood
and agreed that such sum shall constitute full payment for any
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and all damages suffered by Seller by reason of Buyer's failure to close this
Agreement. The parties agree in advance that Fifty Thousand Dollars ($50,000.00)
is a fair and equitable amount to reimburse for damages sustained due to Buyer's
failure to consummate this Agreement because of the above-stated reason and that
this provision shall constitute a liquidated damages provision between the
parties.
(b) In the event of a material breach by Seller prior to the
Closing, Buyer shall have the right to specific performance or to sue for
damages.
SECTION 14. MISCELLANEOUS.
(a) SCHEDULES AND EXHIBITS. All schedules and exhibits attached to
this Agreement (and all other documents referred to therein) shall be deemed
part of this Agreement and incorporated herein, where applicable, as if fully
set forth herein.
(b) NO ASSIGNMENT, SUCCESSORS, ASSIGNS, ETC. This Agreement shall
not be assigned or conveyed by any party hereto to any other person or entity
without the prior written consent of the other parties hereto. This Agreement
shall be binding upon and shall inure or the benefit of the parties hereto,
their heirs, personal representatives, involuntary successors and assigns.
(c) CONSTRUCTION. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida.
(d) COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which shall constitute one and the same instrument.
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(e) NOTICES. Any notice or other communications shall be in writing
and shall be considered to have been duly given when personally delivered or
deposited into first class certified mail, postage prepaid, return receipt
requested:
(i) If to the Seller to:
Spanish Broadcasting System of Florida, Inc.
3191 Coral Way
Suite 805
Miami, Florida 33145
ATTN: Mr. Raul Alarcon, Jr., President and CEO
cc: Jason L. Shrinsky, Esq.
Kaye, Scholer, Fierman, Hays & Handler
901 Fifteenth Street, N.W.
Suite 1100
Washington, D.C. 20005
(ii) If to the Buyer to:
Mr. Raul Alarcon, Sr.
Spanish Broadcasting System of Florida, Inc.
1001 Ponce de Leon Blvd
Coral Gables, Florida 33134
(f) INTEGRATION. Except as herein expressly provided, this Agreement
embodies the entire agreement and understanding between Seller and Buyer, and
supersedes all prior agreements and understandings, whether oral or in writing,
with respect to the purchase and sale of the Stations' Assets.
(g) AMENDMENT. This Agreement shall not be amended or modified in
any manner except by written document executed by the party or parties whom
enforcement of such amendment or modification may be sought.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers on the day and year first above
written.
ATTEST: SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.
________________ By: _____________________________________
Raul Alarcon, Jr., President and CEO
ATTEST:
________________ By: ______________________________________
Raul Alarcon, Sr.
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SCHEDULES AND EXHIBITS
SCHEDULE A Licenses, Permits & Authorizations
SCHEDULE B Contracts, Leases & Business Agreements
SCHEDULE C Copyrights, etc.
SCHEDULE D Personal Property
SCHEDULE E Real Property Leases
EXHIBIT 1 Escrow Agreement
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