Exhibit 99.1
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ASSET PURCHASE AGREEMENT
among
RADIO UNICA COMMUNICATIONS CORP.,
RADIO UNICA CORP.,
Its Subsidiary Licensees Set Forth On The Signature Pages Hereto, and
Its Subsidiary Operating Companies Set Forth On The Signature Pages Hereto,
and
MULTICULTURAL RADIO BROADCASTING INC.
Dated as of October 3, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...........................................................................................2
Section 1.1. Specific Definitions..........................................................................2
Section 1.2. Other Terms..................................................................................12
Section 1.3. Other Definitional Provisions................................................................12
ARTICLE II THE PURCHASE AND SALE OF ASSETS.....................................................................13
Section 2.1. Purchased Assets.............................................................................13
Section 2.2. Excluded Assets..............................................................................14
Section 2.3. Assumed Liabilities..........................................................................16
Section 2.4. Excluded Liabilities.........................................................................17
Section 2.5. Contract Assumption and Assignment...........................................................18
Section 2.6. Contract Obligations.........................................................................19
Section 2.7. No Expansion of Third Party Rights...........................................................19
ARTICLE III PURCHASE PRICE AND DEPOSIT.........................................................................19
Section 3.1. Purchase Price...............................................................................19
Section 3.2. Escrow Deposit...............................................................................20
Section 3.3. Payment of Purchase Price....................................................................20
Section 3.4. Allocation of Purchase Price.................................................................20
Section 3.5. Proration of Income and Expenses; Allocation of Sales Tax. ..................................21
ARTICLE IV CLOSING.............................................................................................22
Section 4.1. Closing......................................................................................22
Section 4.2. Deliveries at Closing........................................................................22
Section 4.3. Closing With Respect to Entirety of Acquired Stations. ......................................24
ARTICLE V REPRESENTATIONS AND WARRANTIES OF RADIO UNICA........................................................25
Section 5.1. Organization, Authority and Qualification....................................................26
Section 5.2. Power and Authority Relative to this Agreement...............................................26
Section 5.3. No Violation; Consents and Approvals. .......................................................26
Section 5.4. Real Estate; Title to Properties. ...........................................................27
Section 5.5. Personal Property............................................................................29
Section 5.6. Litigation...................................................................................29
Section 5.7. Compliance with Law..........................................................................29
Section 5.8. FCC Licenses.................................................................................30
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Section 5.9. Contracts....................................................................................30
Section 5.10. Tax Matters..................................................................................31
Section 5.11. Intellectual Property........................................................................31
Section 5.12. Labor Matters; Employee Benefits.............................................................32
Section 5.13. Environmental and Health and Safety Matters..................................................33
Section 5.14. Brokers and Finders..........................................................................34
Section 5.15. Limitation of Representations and Warranties.................................................34
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.....................................................34
Section 6.1. Organization, Authority and Qualification....................................................35
Section 6.2. Power and Authority Relative to this Agreement...............................................35
Section 6.3. No Violation; Consents and Approvals.........................................................35
Section 6.4. Litigation...................................................................................36
Section 6.5. Brokers and Finders..........................................................................36
Section 6.6. Financing; Solvency..........................................................................36
Section 6.7. Quality of Purchased Assets..................................................................36
Section 6.8. FCC Matters..................................................................................36
ARTICLE VII TAX MATTERS........................................................................................37
Section 7.1. Cooperation on Tax Matters...................................................................37
Section 7.2. Purchaser Returns............................................................................37
Section 7.3. Control of Proceedings.......................................................................37
Section 7.4. Tax Refunds..................................................................................37
Section 7.5. Transfer Taxes...............................................................................37
Section 7.6. Tax Clearance Certificates...................................................................38
ARTICLE VIII CERTAIN COVENANTS AND AGREEMENTS OF RADIO UNICA, THE SELLERS, PARENT AND THE PURCHASER............39
Section 8.1. Restructuring................................................................................39
Section 8.2. No Solicitation of Alternative Transactions..................................................40
Section 8.3. Other Assets and Agreements..................................................................41
Section 8.4. Additional Matters; Further Assurances; Releases of Liens; Receivables.......................42
Section 8.5. Access and Information.......................................................................42
Section 8.6. Confidentiality..............................................................................43
Section 8.7. Appropriate Actions; Registrations, Filings and Consents.....................................44
Section 8.8. FCC Consent and Application..................................................................45
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Section 8.9. Conduct of Business..........................................................................46
Section 8.10. Environmental Audit..........................................................................47
Section 8.11. Title Insurance and Survey. .................................................................48
Section 8.12. Employees....................................................................................48
Section 8.13. Adjustments..................................................................................49
Section 8.14. Cure Costs...................................................................................49
ARTICLE IX CONDITIONS TO CLOSING...............................................................................49
Section 9.1. Conditions Precedent to Obligations of the Sellers and the Purchaser.........................49
Section 9.2. Conditions Precedent to Obligation of the Sellers............................................50
Section 9.3. Conditions Precedent to the Obligation of the Purchaser......................................50
ARTICLE X TERMINATION..........................................................................................52
Section 10.1. Termination..................................................................................52
Section 10.2. Notice of Termination........................................................................54
Section 10.3. Effect of Termination........................................................................54
Section 10.4. Break-Up Payment.............................................................................54
Section 10.5. Remedies Upon Termination....................................................................55
ARTICLE XI SURVIVAL AND INDEMNIFICATION........................................................................55
Section 11.1. Survival of Representations. ................................................................55
Section 11.2. Post-Closing Indemnification.................................................................55
Section 11.3. Indemnification Procedures and Limitations...................................................56
Section 11.4. Holdback Escrow..............................................................................56
Section 11.5. Exclusive Remedy.............................................................................56
ARTICLE XII MISCELLANEOUS......................................................................................56
Section 12.1. Amendment and Waiver.........................................................................56
Section 12.2. Expenses.....................................................................................56
Section 12.3. Public Disclosure............................................................................57
Section 12.4. Specific Performance.........................................................................57
Section 12.5. Assignment...................................................................................57
Section 12.6. Entire Agreement.............................................................................57
Section 12.7. Fulfillment of Obligations...................................................................57
Section 12.8. Parties in Interest; No Third Party Beneficiaries............................................57
Section 12.9. Schedules....................................................................................58
Section 12.10. Counterparts.................................................................................58
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Section 12.11. Headings.....................................................................................58
Section 12.12. Notices......................................................................................58
Section 12.13. No Strict Construction.......................................................................59
Section 12.14. Governing Law................................................................................59
Section 12.15. Severability.................................................................................60
Section 12.16. Like-Kind Exchange...........................................................................60
LIST OF EXHIBITS
EXHIBIT A ACQUIRED STATIONS
EXHIBIT B ESCROW AGREEMENT
EXHIBIT C HOLDBACK ESCROW AGREEMENT
LIST OF SCHEDULES
SCHEDULE 1.1 KNOWLEDGE PARTIES
SCHEDULE 2.1(a) ACQUIRED STATION LICENSES
SCHEDULE 2.1(b) TANGIBLE PERSONAL PROPERTY
SCHEDULE 2.1(c) REAL PROPERTY
SCHEDULE 2.1(l) NETWORK ASSETS
SCHEDULE 2.5(a) CONTRACTS
SCHEDULE 5.3(a) SELLERS' CONSENTS AND WAIVERS
SCHEDULE 5.3(b) SELLERS' GOVERNMENTAL APPROVALS AND FILINGS
SCHEDULE 5.4(a) OWNED REAL PROPERTY
SCHEDULE 5.4(b) LEASED REAL PROPERTY
SCHEDULE 5.5 CONDITION OF PROPERTY
SCHEDULE 5.6 LITIGATION
SCHEDULE 5.8(b) FCC COMPLIANCE
SCHEDULE 5.9(b) CONTRACT COMPLIANCE
SCHEDULE 5.10 TAX MATTERS
SCHEDULE 5.11 PATENTS, TRADEMARKS AND COPYRIGHTS
SCHEDULE 5.12(b) COBRA BENEFITS
SCHEDULE 5.13(a) ENVIRONMENTAL COMPLIANCE
SCHEDULE 5.14 SELLERS' BROKERS
SCHEDULE 6.3(a) PURCHASER'S CONSENTS AND WAIVERS
SCHEDULE 6.3(b) PURCHASER'S GOVERNMENTAL APPROVALS AND FILINGS
SCHEDULE 6.5 PURCHASER'S BROKERS
SCHEDULE 8.9 CONDUCT OF BUSINESS
SCHEDULE 9.3(f) CLOSING CONSENTS, WAIVERS AND APPROVALS
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ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (this "AGREEMENT") is made and entered
into as of October 3, 2003, by and among
Radio Unica Communications Corp., a
Delaware corporation ("RADIO UNICA"), Radio Unica Corp., a Delaware corporation
("RADIO UNICA CORP."), the Persons identified on the signature pages to this
Agreement as the "Licensees" (each a "LICENSEE" and, together, the "LICENSEES"),
the Persons identified on the signature pages to this Agreement as the
"Operating Companies" (each an "OPERATING COMPANY" and, together, the "OPERATING
COMPANIES" and, collectively with Radio Unica Corp. and the Licensees, the
"SELLERS"), and Multicultural Radio Broadcasting Inc., a New Jersey corporation
(the "PURCHASER").
W I T N E S S E T H:
WHEREAS, Radio Unica is engaged, through the Sellers, in the Business;
and
WHEREAS, each of the Parties wishes to effect a series of transactions
that shall together constitute a capital restructuring of the Restructuring
Companies, all on the terms and subject to the conditions set forth herein; and
WHEREAS, the Parties desire to effectuate such capital restructuring
in conjunction with the filing with the Bankruptcy Court of a voluntary petition
for relief under Chapter 11 of the Bankruptcy Code and the Bankruptcy Plan and
the Disclosure Statement relating thereto; and
WHEREAS, Radio Unica owns, directly or indirectly, all of the issued
and outstanding shares of capital stock of each Seller; and
WHEREAS, Radio Unica and each Seller desire to sell and transfer to
the Purchaser or its Designees, and the Purchaser (or its Designees) desires to
purchase and assume from Radio Unica and each Seller, the Purchased Assets and
the Purchaser (or its Designees) is willing to assume, and Radio Unica and each
Seller desire to assign to the Purchaser (or its Designees), the Assumed
Liabilities; and
WHEREAS, upon the terms and subject to the conditions set forth
herein, and as contemplated under the Bankruptcy Plan, the Purchaser or its
Designees will purchase from the Sellers the Purchased Assets and the Purchaser
or its Designees will assume from the Sellers the Assumed Liabilities;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. SPECIFIC DEFINITIONS. As used in this Agreement, the
following terms shall have the meanings set forth or referenced below:
"ACQUIRED INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 2.1(e).
"ACQUIRED STATION LICENSES" shall have the meaning set forth in
Section 2.1(a).
"ACQUIRED STATIONS" shall mean the radio broadcast stations set forth
on EXHIBIT A hereto.
"ACQUIRED STATIONS EQUIPMENT" shall have the meaning set forth in
Section 2.1(b).
"ADJUSTED PURCHASE PRICE" shall have the meaning set forth in Section
3.1.
"ADMINISTRATIVE CLAIM" shall mean a claim entitled to administrative
expense priority under Sections 503(b) and/or 507(a)(1) of the Bankruptcy Code.
"AFFILIATE," as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by or under common control with
such Person.
"AGREEMENT" shall have the meaning set forth in the preamble.
"ALLOCATION" shall have the meaning set forth in Section 3.4.
"ALLOWED BREAK-UP PAYMENT CLAIM" shall have the meaning set forth in
Section 8.1(c).
"ALTERNATIVE AGREEMENT" shall have the meaning set forth in Section
8.2(b).
"ALTERNATIVE TRANSACTION" shall have the meaning set forth in Section
8.2(d).
"ANTITRUST DIVISION" shall mean the Antitrust Division of the United
States Department of Justice.
"ASSIGNED CONTRACTS" shall have the meaning set forth in Section
2.5(a).
"ASSUMED LIABILITIES" shall have the meaning set forth in Section 2.3.
"BANKRUPTCY CASE" shall mean all legal proceedings instituted in a
Bankruptcy Court in connection with the Restructuring Transaction; PROVIDED,
that for all purposes relating to the approval or payment of the Break-Up
Payment to which the Purchaser becomes entitled prior to the commencement of the
Bankruptcy Case hereunder, "BANKRUPTCY CASE" shall mean all legal proceedings
instituted in a Bankruptcy Court by the Restructuring Companies in connection
with
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the restructuring of their financial circumstances and/or capitalization
subsequent to the date of the termination of this Agreement.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code, 11
U.S.C. Section 101, et seq., as in effect for cases filed on the date the
Bankruptcy Case is filed.
"BANKRUPTCY COURT" shall mean the United States Bankruptcy Court or
other U.S. federal court of competent jurisdiction in which the Bankruptcy Case
is pending.
"BANKRUPTCY PLAN" shall mean the plan of reorganization under Chapter
11 of the Bankruptcy Code substantially in the form provided to the Purchaser
immediately prior to the execution of this Agreement as filed on or shortly
after the commencement of the Bankruptcy Case by the Restructuring Companies,
with such changes or supplements thereto as may be mutually agreed in writing by
the Restructuring Companies and the Purchaser.
"BANKRUPTCY RULES" shall mean the Federal Rules of Bankruptcy
Procedure.
"BOARD OF DIRECTORS" shall mean the Board of Directors of Radio Unica.
"BREAK-UP PAYMENT" shall mean an amount equal to Four Million Five
Hundred Thousand Dollars ($4,500,000), plus the reasonable and documented
out-of-pocket expenses incurred by the Purchaser and any Affiliate thereof in
connection with this Agreement and the transactions contemplated by this
Agreement in an amount not to exceed One Million Dollars ($1,000,000).
"BREAK-UP PAYMENT CLAIM ORDER" shall mean an order of the Bankruptcy
Court in form and substance reasonably satisfactory to the Purchaser (i)
allowing the Break-Up Payment as the use of property of the Restructuring
Companies other than in the normal course of business under Sections 363(b) and
105 of the Bankruptcy Code and as an Administrative Claim in the Bankruptcy Case
and (ii) providing for payment to the Purchaser under the circumstances provided
for in this Agreement.
"BREAK-UP PAYMENT ORDER" shall mean an order of the Bankruptcy Court
in form and substance reasonably satisfactory to the Purchaser (i) approving the
Break-Up Payment as the use of property of the Restructuring Companies other
than in the normal course of business under Sections 363(b) and 105 of the
Bankruptcy Code and as an administrative expense of the Restructuring Companies'
bankruptcy estate and (ii) providing for payment to the Purchaser under the
circumstances provided for in this Agreement.
"BUSINESS" shall mean the business of owning and operating the
Acquired Stations.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
day on which banks in Miami, Florida or
New York,
New York are authorized or
obligated by Law or executive order to close.
"BUSINESS EMPLOYEES" shall have the meaning set forth in Section 8.12.
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"CLAIM" shall mean any claim, demand, action, suit, lawsuit,
litigation, hearing, arbitration, proceeding or appeal, whether civil or
criminal, administrative or otherwise, by or before any Governmental Entity or
arbitrator.
"CLOSING" shall have the meaning set forth in Section 4.1.
"CLOSING DATE" shall have the meaning set forth in Section 4.1.
"COBRA" shall have the meaning set forth in Section 2.4(g).
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMMITMENT LETTER" shall have the meaning set forth in Section
8.7(b).
"COMMON STOCK" shall mean the common stock, par value $.01 per share,
of Radio Unica.
"CONFIDENTIALITY AGREEMENT" shall have the meaning set forth in
Section 8.6(a).
"CONFIRMATION ORDER" shall mean the order entered by the Bankruptcy
Court in the Bankruptcy Case, in form and substance reasonably satisfactory to
the Purchaser, confirming the Bankruptcy Plan pursuant to Section 1129 of the
Bankruptcy Code. The Confirmation Order shall provide, among other things, (i)
that the sale of the Purchased Assets and Assumed Liabilities pursuant to this
Agreement shall be free and clear of all claims (as defined under the Bankruptcy
Code), interests and Liens other than Permitted Liens to the extent such
Permitted Liens cannot be removed by operation of sections 105, 363(f) or 1141
of the Bankruptcy Code, and (ii) an express finding that the parties to the
Bankruptcy Case, the Purchaser and any Designees have acted in good faith.
"CONTRACT" shall mean any mortgage, bond, note, loan, evidence of
indebtedness, purchase order, letter of credit, indenture, covenant not to
compete, lease, franchise, license, permit, contract, agreement, commitment,
obligation, trust, instrument or other written binding arrangement or
understanding.
"CONTRACT CONFIDENTIAL INFORMATION" shall have the meaning set forth
in Section 2.5(c).
"CONTRACT PARTIES" shall have the meaning set forth in Section
2.5(c)(ii).
"COPYRIGHTS" shall mean all copyrights, including without limitation
moral rights and rights of attribution and integrity, copyrights in Software and
in the content contained on any Web site, and registrations and applications for
any of the foregoing, and rights to ▇▇▇ for past Infringement thereof.
"DESIGNEE" shall mean any direct or indirect wholly-owned Subsidiary
of the Purchaser that the Purchaser may appoint to (a) purchase specified
Purchased Assets, (b) assume specified Assumed Liabilities or any Assigned
Contract, or (c) exercise any of the Purchaser's rights hereunder, it being
understood and agreed that any such right to designate is conditioned
4
upon such Designee being able to demonstrate satisfaction of the requirements of
Section 365 of the Bankruptcy Code including the provision of adequate assurance
for future performance; PROVIDED, that the Purchaser must inform Radio Unica of
any such appointment no later than the fifth (5th) Business Day prior to the
Closing Date.
"DISCLOSURE STATEMENT" shall mean the disclosure statement filed under
Section 1125 of the Bankruptcy Code in connection with the Bankruptcy Plan in
the Bankruptcy Case.
"DOMAIN NAMES" shall mean any alphanumeric designations which are
registered with or assigned by any domain name registrar, domain name registry,
or other domain name registration authority as part of an electronic address on
the Internet.
"▇▇▇▇▇▇▇ MONEY DEPOSIT" shall have the meaning set forth in Section
3.2(a).
"EHS LAWS" shall have the meaning set forth in Section 5.13(a).
"EMPLOYEE BENEFIT PLANS" shall have the meaning set forth in Section
5.12(b).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" shall have the meaning set forth in Section 5.12(b).
"ESCROW AGENT" shall have the meaning set forth in Section 3.2(a).
"ESCROW AGREEMENT" shall have the meaning set forth in Section 3.2(a).
"EXCLUDED ASSETS" shall have the meaning set forth in Section 2.2.
"EXCLUDED INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 2.2(b).
"EXCLUDED LIABILITIES" shall have the meaning set forth in Section
2.4.
"EXISTING COMMITMENT LETTER" shall have the meaning set forth in
Section 6.6.
"FAILURE" shall have the meaning set forth in Section 10.1(j).
"FCC" shall mean the Federal Communications Commission or any
successor agency thereto.
"FCC APPLICATION" shall have the meaning set forth in Section 8.8(b).
"FCC CONSENT" shall have the meaning set forth in Section 8.8(a).
"FCC LICENSES" shall have the meaning set forth in Section 2.1(a).
5
"FCC MULTIPLE OWNERSHIP RULES" shall have the meaning set forth in
Section 8.8(b).
"FCC RULES" shall have the meaning set forth in Section 5.8(a).
"FINAL ORDER" shall mean an Order (a) as to which the time to appear,
petition for certiorari or move for review or rehearing has expired and as to
which no appeal, petition for certiorari or other proceeding for review or
rehearing is pending or (b) which, if an appeal, writ of certiorari, reargument
or rehearing has been filed or sought, has been affirmed by the highest court to
which such Order was appealed or certiorari has been denied, or reargument or
rehearing shall have been denied or resulted in no modification of such Order,
and the time to take any further appeal or to seek certiorari or further
reargument or rehearing has expired; PROVIDED, HOWEVER, that the possibility
that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure,
or any analogous rule under the Bankruptcy Rules, may be filed with respect to
such Order shall not prevent such Order from being considered a Final Order.
"FINANCING" shall have the meaning set forth in Section 8.7(b).
"FTC" shall mean the United States Federal Trade Commission.
"GAAP" shall mean United States generally accepted accounting
principles.
"GOVERNMENTAL ENTITY" shall mean any United States federal, state or
local or any supranational or non-United States court, tribunal, legislative,
executive governmental, quasi-governmental or regulatory authority,
self-regulatory authority, agency, department, commission, instrumentality or
body.
"HAZARDOUS SUBSTANCE" shall have the meaning set forth in Section
5.13(a).
"HOLDBACK AMOUNT" shall mean an amount equal to Five Hundred Thousand
Dollars ($500,000).
"HOLDBACK DEPOSIT" shall mean the funds paid into escrow pursuant to
the Holdback Escrow Agreement equal to the Holdback Amount.
"HOLDBACK ESCROW AGREEMENT" shall mean the agreement among the Parties
and the escrow agent thereunder in the form of EXHIBIT C hereto.
"HSR ACT" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended.
"INDEMNITY CLAIM" shall mean a claim for reimbursement under Article
XI.
"INFRINGEMENT" shall mean an assertion that a given item infringes,
misappropriates, dilutes (with respect to Trademarks), unfairly competes with,
constitutes unauthorized Use of or otherwise violates the Intellectual Property
rights of any Person.
"INITIAL CLOSING" shall have the meaning set forth in Section
4.3(a)(i).
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"INTELLECTUAL PROPERTY" shall mean all Copyrights; Patents; Rights of
Publicity; Trademarks; Domain Names; Trade Secrets; and other similar intangible
assets.
"IP CLAIM" shall mean any suit, arbitration, opposition, interference,
cancellation or other adversarial proceeding.
"INTERESTED PARTIES" shall have the meaning set forth in Section
2.5(c).
"IRS" shall mean the United States Internal Revenue Service.
"KNOWLEDGE," with respect to any individual, or any other Person, as
the case may be, shall mean the actual, direct and personal knowledge of such
individual, or the executive officers (or persons performing similar functions)
of such other Person, in each case after reasonable inquiry. The Knowledge of
Radio Unica shall mean the Knowledge of the individuals set forth on SCHEDULE
1.1 of the Sellers' Disclosure Letter.
"LAW" shall mean any law, rule, regulation, code, plan, Order or other
restriction of any arbitrator, court or other Governmental Entity.
"LEASED REAL PROPERTY" shall have the meaning set forth in Section
5.4(b).
"LEASES" shall have the meaning set forth in Section 5.4(b)(i).
"LICENSEE" and "LICENSEES" shall have the meanings set forth in the
preamble and shall include any successor entities to the Licensee constituting
"debtors-in-possession" under the Bankruptcy Code.
"LIEN" shall mean any pledge, option, charge, hypothecation, easement,
security interest, right of way, encroachment, mortgage, deed of trust, or other
encumbrance or restriction on transfer and shall also have the meaning ascribed
to "lien" in Section 101 of the Bankruptcy Code.
"MATERIAL ADVERSE EFFECT" shall mean, (a) with respect to Radio Unica,
an effect which is reasonably likely to prevent or materially delay or
materially impair the ability of Radio Unica or any Seller to consummate the
transactions contemplated by this Agreement, (b) with respect to the Purchased
Assets, an adverse effect on the properties, assets, liabilities or condition of
the Purchased Assets and/or the Assumed Liabilities which results in a loss in
value with respect to the Purchased Assets equal to or greater than Fifteen
Million Dollars ($15,000,000), and (c) with respect to the Purchaser, an effect
which is reasonably likely to prevent or materially delay or materially impair
the ability of the Purchaser to consummate the transactions contemplated by this
Agreement; PROVIDED, that a Material Adverse Effect shall not be deemed to have
occurred with respect to a Person or the Purchased Assets as a result solely of
matters disclosed by such Person on the Sellers' Disclosure Letter or the
Purchaser's Disclosure Schedule as of the execution of this Agreement or
Schedules attached to this Agreement delivered contemporaneously with the
execution of this Agreement; and PROVIDED FURTHER, in no event shall any of the
following be taken into account (alone or in combination with any other event
identified in this or the preceding proviso) in determining whether there has
been such a Material Adverse Effect: (i) any change, event, circumstance,
development or effect attributable
7
primarily to the public announcement or pendency of this Agreement or the
transactions contemplated by this Agreement; (ii) any material adverse effect on
the assets (other than the Purchased Assets), business, financial condition or
results of operations of Radio Unica or any of its Subsidiaries, including
changes in the price or trading volume of Radio Unica's Securities; (iii) any
change, event, circumstance, development or effect attributable primarily to
conditions generally affecting the radio broadcasting industry, except to the
extent that any such change, event, circumstance, development or effect has an
adverse effect on the Purchased Assets that is materially and disproportionately
greater than the adverse effect on radio station assets generally; (iv) any
change in GAAP for companies operating in the radio broadcasting industry; and
(v) general economic, political or market conditions, or acts of terrorism or
war (whether or not formally declared) except to the extent that any such
conditions or acts have (A) an adverse effect on the Purchased Assets that is
materially and disproportionately greater than the adverse effect on radio
station assets generally or (B) a material adverse effect on the physical
condition of the Purchased Assets, taken as a whole, or the ability of the
Purchased Assets, taken as a whole, to be used in a manner consistent with past
practice; and PROVIDED FURTHER, that the filing or pendency of the Bankruptcy
Cases and any proceedings thereunder are not by themselves a Material Adverse
Effect (it being understood that the facts underlying any allegations or claims
against Radio Unica or the Sellers asserted in any such proceedings may be the
basis for a Material Adverse Effect).
"MIAMI SELLERS" shall have the meaning set forth in Section
4.3(b)(vii).
"MIAMI STATIONS" shall have the meaning set forth in Section 4.3(a).
"NETWORK" shall mean a communication system consisting of a group of
broadcast stations that all transmit the same programming simultaneously for all
or a substantial portion of the broadcast day, together with all goodwill and
intangibles associated therewith and including contracts for programming and
contracts for on-air talent, but excluding the physical assets of each of the
broadcast stations that are part thereof.
"NETWORK ASSETS" shall have the meaning set forth in Section 2.1(l).
"NOTICE DATE" shall have the meaning set forth in Section 2.5(c)(i).
"OPERATING COMPANY" and "OPERATING COMPANIES" shall have the meanings
set forth in the preamble.
"ORDER" or "ORDERS" shall mean any order, injunction, judgment,
decree, ruling, writ, assessment or arbitration award of a Governmental Entity
or arbitral body.
"OWNED REAL PROPERTY" shall have the meaning set forth in Section
5.4(a).
"PARTY" shall mean a party to this Agreement.
"PATENTS" shall mean all patents and industrial designs, including
without limitation any continuations, divisionals, continuations-in-part,
renewals, reissues and applications for any of the foregoing, and rights to ▇▇▇
for past Infringement thereof.
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"PERMITTED LIENS" shall mean (a) statutory Liens for current taxes,
assessments or other governmental charges not yet delinquent; (b) mechanics',
carriers', workers', repairers' and similar Liens in respect of obligations not
yet delinquent; (c) zoning, entitlement and other land use and environmental
regulations by any Governmental Entity that do not impact the use or
marketability of the property in question in a materially adverse manner; and
(d) such other Liens not materially adverse to the use or marketability of the
Purchased Assets.
"PERSON" shall mean any individual, corporation, partnership (general
or limited), limited liability company, firm, joint venture, association,
joint-stock company, trust, estate, unincorporated organization or Governmental
Entity or other entity or organization.
"PROCEEDINGS" shall mean any judicial or administrative claim,
litigation, suit, proceeding, formal investigation, inquiry, audit or review of
any nature by any Taxing Authority.
"PURCHASED ASSETS" shall have the meaning set forth in Section 2.1.
"PURCHASE PRICE" shall have the meaning set forth in Section 3.1.
"PURCHASER" shall have the meaning set forth in the preamble.
"PURCHASER RETURNS" shall have the meaning set forth in Section 7.2.
"PURCHASER'S DISCLOSURE LETTER" shall have the meaning set forth in
Article VI.
"RADIO UNICA" shall have the meaning set forth in the preamble.
"RADIO UNICA CORP." shall have the meaning set forth in the preamble.
"REAL PROPERTY" shall have the meaning set forth in Section 2.1(c).
"RELATED DOCUMENT" shall mean the documents expressly required to be
executed in connection with the consummation of the transactions contemplated by
this Agreement, including the Escrow Agreement.
"REPRESENTATIVES" shall have the meaning set forth in Section 8.2(a).
"RESTRUCTURING" shall mean the restructuring of the combined
capitalization of the Restructuring Companies pursuant to the Bankruptcy Plan.
"RESTRUCTURING COMPANIES" shall mean Radio Unica and the Sellers (and
any other Subsidiaries of Radio Unica that are party to the Bankruptcy Plan).
"RESTRUCTURING TRANSACTION" shall mean any or all of the following:
(a) discussions and negotiations with the Restructuring Companies' creditors in
order to reduce or refinance outstanding senior and subordinated indebtedness of
the Restructuring Companies, (b) commencement of the Bankruptcy Case and
adoption and implementation of the Bankruptcy Plan, and (c) any other
transaction, filing, case, action or event, or other series of transactions,
filings, cases, actions or events (including, without limitation, a consent
solicitation, a
9
prenegotiated plan or any other bankruptcy case), whereby the completion of
which, as evidenced by a Final Order, if applicable, shall have effectuated the
Restructuring in all material respects.
"RIGHTS OF PUBLICITY" shall mean all rights of publicity and privacy,
including but not limited to the Use of the names, likenesses, voices,
signatures, biographical information, persona and other recognizable aspects of
real Persons, and rights to ▇▇▇ for past Infringement thereof.
"SALES TAX" shall have the meaning set forth in Section 7.5(b).
"SECURITIES" shall mean shares of capital stock, debt securities,
partnership interests, membership interests in limited liability companies and
similar rights.
"SELLERS" shall have the meaning set forth in the preamble.
"SELLERS' DISCLOSURE LETTER" shall have the meaning set forth in
Article V.
"SELLERS TAX RETURNS" shall have the meaning set forth in Section
5.10(a).
"SENIOR NOTES" shall mean the 113/4% Notes due 2006 issued by Radio
Unica Corp. under an Indenture, dated June 27, 1998.
"SOFTWARE" shall mean all computer programs (whether in source code or
object code form), databases, compilations and data, and all documentation
related to any of the foregoing.
"STRADDLE PERIOD" shall mean all Tax periods commencing on a date that
is prior to the Closing Date and ending on a date that is following the Closing
Date.
"STUDIO LEASES" shall have the meaning set forth in Section 2.1(c).
"STUDIO PROPERTIES" shall have the meaning set forth in Section
2.1(c).
"SUBSEQUENT CLOSING" shall have the meaning set forth in Section
4.3(a)(ii).
"SUBSIDIARY" shall mean, with respect to any Person at any time, any
corporation, partnership, joint venture, association, limited liability company,
joint-stock company, trust or estate, or unincorporated organization of which
(or in which) more than fifty percent (50%) of: (a) the issued and outstanding
shares of capital stock having ordinary voting power to elect a majority of the
board of directors of such corporation (irrespective of whether at the time
shares of capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency); (b) the
interest in the capital or profits of such partnership, joint venture or limited
liability company; or (c) the beneficial interest in such trust or estate, is,
at such time, directly or indirectly owned by such Person.
"SUPERIOR PROPOSAL" shall have the meaning set forth in Section
8.2(d).
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"SURVEY" shall have the meaning set forth in Section 8.11(b).
"TANGIBLE PERSONAL PROPERTY" shall have the meaning set forth in
Section 2.1(b).
"TAX" or "TAXES" shall mean any and all taxes, assessments, duties or
charges of any kind whatsoever, including, without limitation, corporate,
business profits, franchise, income, sales, use, AD VALOREM, gross receipts,
value-added, profits, license, minimum, alternative minimum, environmental,
withholding, payroll, employment, excise, property, customs and occupation taxes
that are imposed by a Taxing Authority, and any interest, fine, penalty,
addition to tax and other amounts imposed with respect thereto.
"TAXING AUTHORITY" shall mean any government or political subdivision
or territory or possession of any government or any authority or agency therein
or thereof having power to tax.
"TAX RETURNS" shall mean all returns, reports, forms, estimates,
information returns and statements (including any related or supporting
information) filed or required to be filed with any Taxing Authority in
connection with the determination, assessment, collection or administration of
any Taxes.
"TIME BROKERAGE AGREEMENTS" shall mean (i) the Time Brokerage
Agreement, dated April 12, 2001, by and between Radio Unica of Miami License
Corp. and Hispanic Christian Radio, LLC, and (ii) the Time Brokerage Agreement,
dated June 1, 2001, as amended, by and between Radio Unica of
New York License
Corp. and Radio Restoration.
"TITLE COMMITMENT" shall have the meaning set forth in Section
8.11(a).
"TITLE COMPANY" shall have the meaning set forth in Section 8.11(a).
"TITLE POLICY" shall have the meaning set forth in Section 8.11(a).
"TOWER SITE LEASES" shall have the meaning set forth in Section
2.1(c).
"TOWER SITE PROPERTIES" shall have the meaning set forth in Section
2.1(c).
"TRADEMARKS" shall mean all trademarks, service marks, trade names,
designs, logos, emblems, signs or insignia, slogans, other similar designations
of source or origin and general intangibles of like nature, together with the
goodwill of the business symbolized by any of the foregoing, registrations and
applications relating to any of the foregoing, and rights to ▇▇▇ for past
Infringement thereof.
"TRADE SECRETS" shall mean all forms and types of financial, business,
scientific, technical, economic, or engineering information, including without
limitation patterns, plans, compilations, program devices, formulas, designs,
prototypes, methods, techniques, processes, procedures, programs, or codes,
whether tangible or intangible, and whether or how stored, compiled, or
memorialized physically, electronically, graphically, photographically, or in
writing
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if (a) the owner thereof has taken reasonable measures to keep such information
secret; and (b) the information derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable through proper means by, the public, and rights to ▇▇▇ for past
Infringement thereof.
"TRANSACTION" shall have the meaning set forth in Section 8.6(b).
"TRANSFER TAXES" shall have the meaning set forth in Section 7.5.
"TREASURY REGULATIONS" shall mean the income tax regulations,
including temporary regulations, promulgated under the Code, as may be amended
from time to time.
"TRIGGER DATE" shall have the meaning set forth in Section 10.1(j).
"USE" shall mean to copy, reproduce, display, perform, transmit,
produce, distribute, disclose to third parties, create derivative works of or
otherwise modify, make, use, hold or make available for use, sell (or offer to
make, use or sell), import, export, or otherwise exploit, or grant to others the
right or license to do the same.
"WARN" shall mean the Worker Adjustment and Retraining Notification
Act, and any similar state or local Law.
Section 1.2. OTHER TERMS. Other terms may be defined elsewhere in
the text of this Agreement and, unless otherwise indicated, shall have such
meaning indicated throughout this Agreement.
Section 1.3. OTHER DEFINITIONAL PROVISIONS. (a) The words "HEREOF,"
"HEREIN," and "HEREUNDER" and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. Where a reference in this Agreement is made to a
Section, Schedule, Exhibit or Annex, such reference shall be to a Section of,
Schedule, Exhibit or Annex to this Agreement unless otherwise indicated.
(b) The words and phrases "include," "includes," "including," and
"including, but not limited to," when used in this Agreement shall mean
"including, without limitation."
(c) The definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(d) Unless the context requires otherwise, any agreement, instrument
or statute defined or referred to herein or in any agreement or instrument that
is referred to herein means such agreement, instrument or statute as from time
to time amended, modified or supplemented, including (in the case of agreements
or instruments) by waiver or consent and (in the case of statutes) by succession
of comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a Person are also to its
permitted successors and assigns.
(e) The terms "DOLLARS" and "$" shall mean United States Dollars.
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ARTICLE II
THE PURCHASE AND SALE OF ASSETS
Section 2.1. PURCHASED ASSETS. Upon the terms and subject to the
conditions contained herein, on the Closing Date, Radio Unica will cause the
Sellers to and the Sellers will sell, convey, transfer, assign and deliver to
the Purchaser and/or one or more of its Designees, and the Purchaser will, or
will cause one or more of its Designees to, as the case may be, purchase and
acquire from the Sellers all of the legal and beneficial right, title and
interest of the Sellers in and to all of their respective properties, assets,
Contracts and rights used or useful in the Business of whatever kind or nature,
whether real or personal, tangible or intangible, wherever located (the
"PURCHASED ASSETS"), free and clear of all claims (as defined under the
Bankruptcy Code), interests and Liens other than Permitted Liens to the extent
such Permitted Liens cannot be removed by operation of sections 105, 363(f) or
1141 of the Bankruptcy Code. The Purchased Assets shall include, but shall not
be limited to, the properties, assets, Contracts and rights described below (but
shall specifically exclude the Excluded Assets set forth in Section 2.2):
(a) all licenses, permits and other authorizations, including
applications with respect thereto, relating to the Acquired Stations issued to
the Sellers by the FCC or any other Governmental Entity on or prior to the
Closing Date, together with renewals or modifications thereof, including,
without limitation, the licenses, permits, authorizations and applications
identified on SCHEDULE 2.1(a) of the Sellers' Disclosure Letter (collectively
the "ACQUIRED STATION LICENSES"; the Acquired Station Licenses issued to the
Sellers by the FCC are referred to herein as the "FCC LICENSES");
(b) (i) all of the Sellers' right, title and interest in and to all
equipment, including broadcast equipment, transmitters and related equipment,
broadcast towers, electrical devices, antennae, cables, tools and hardware,
together with any additions thereto or replacements thereof made between the
date hereof and the Closing Date, and less any retirements or dispositions
thereof made between the date hereof and the Closing Date to the extent
permitted hereunder (the "ACQUIRED STATIONS EQUIPMENT") and (ii) all of the
office furniture and fixtures, office materials and supplies, inventory and
other tangible personal property (other than the Acquired Stations Equipment),
together with any additions thereto or replacements thereof made between the
date hereof and the Closing Date, and less any retirements or dispositions
thereof made between the date hereof and the Closing Date to the extent
permitted hereunder (together with the Acquired Stations Equipment, and as
collectively described on SCHEDULE 2.1(b) of the Sellers' Disclosure Letter, the
"TANGIBLE PERSONAL PROPERTY");
(c) all of the Sellers' right, title and interest in and to all of
the real property used at the tower site facility for each Acquired Station that
is leased by each Seller (the "TOWER SITE LEASES") or owned by each Seller
(together with the Tower Site Leases, the "TOWER SITE PROPERTIES"), all of the
Sellers' ownership or leasehold rights in and to any buildings, fixtures, and
improvements located thereon, together with any additions thereto between the
date hereof and the Closing Date, and all leased property used as any Acquired
Station's broadcast studio (the "STUDIO LEASES" or "STUDIO PROPERTIES"),
including but not limited to those described on SCHEDULE 2.1(c) of the Sellers'
Disclosure Letter (collectively, the "REAL PROPERTY"), but, in the
13
case of the Tower Site Leases, the Studio Leases and other leasehold rights,
only to the extent such Leases constitute Assigned Contracts;
(d) all of the Sellers' right, title and interest in and to the
Assigned Contracts, together with all Contracts entered into or acquired by any
Seller between the date hereof and the Closing Date in accordance with Section
8.9(b)(ii) of this Agreement which the Purchaser has agreed to assume in writing
at the Closing;
(e) all of the Sellers' right, title and interest in and to the call
letters associated with the Acquired Stations, including without limitation all
Trademark rights therein (collectively, the "ACQUIRED INTELLECTUAL PROPERTY"),
and Copyrights in Software assigned to the Purchaser pursuant to Section 2.1(h);
(f) all of the Sellers' right, title and interest in and to all
warranties, representations and guarantees made by suppliers, manufacturers and
contractors in connection with the Business;
(g) subject to Section 3.5, all credits, prepaid expenses, deferred
charges, advance payments, security deposits and prepaid items (and, in each
case, security interests from third parties relating thereto);
(h) all Software, including all Copyrights therein, held for use or
useable by the Sellers in the conduct of the Business, whether owned, licensed
or leased, or internally developed (in each case, subject to applicable
restrictions on use);
(i) all telephone numbers used by the Sellers in the conduct of the
Business;
(j) all files, records, and books of account relating to, or which
are located at the premises of, the Acquired Stations, including studies,
consulting reports, marketing and demographic data, list of advertisers,
technical information and engineering data, filings with the FCC, copies of all
written Assigned Contracts, logs and the public inspection file;
(k) all claims, lawsuits or other causes of action of the Sellers
with respect to the Purchased Assets or the Business; and
(l) all broadcasting, production and other equipment, including
office furniture and fixtures, related to or used by the Network operated by
Radio Unica and described on SCHEDULE 2.1(l) of the Sellers' Disclosure Letter
(collectively, the "NETWORK ASSETS");
PROVIDED, that by delivery to the Purchaser of written notice and a payment in
the amount of Five Hundred Thousand Dollars ($500,000), which delivery shall be
made not later than ninety (90) days from the date of this Agreement, Radio
Unica may elect in its sole discretion to exclude the Network Assets from the
Purchased Assets; PROVIDED, FURTHER, that if the Agreement is terminated, the
Purchaser shall promptly refund such payment to Radio Unica.
Section 2.2. EXCLUDED ASSETS. Notwithstanding anything to the
contrary contained herein, it is expressly understood and agreed that the
Purchased Assets shall not
14
include the following assets or the Sellers' right, title and interest therein
(collectively, the "EXCLUDED ASSETS"):
(a) Radio Unica's and the Sellers' rights under this Agreement and
the Related Documents to which they are parties;
(b) all Intellectual Property other than the Acquired Intellectual
Property and Copyrights in Software assigned to the Purchaser pursuant to
Section 2.1(h) (the "EXCLUDED INTELLECTUAL PROPERTY"), including without
limitation:
(i) all Network and local programs and programming
materials and elements of whatever form or nature Used by Radio Unica or
any of the Sellers, whether recorded on tape or any other substance, or
intended for live performance, and whether completed or in production, and
all related Intellectual Property Used in connection with such Network and
local programs and programming materials; and
(ii) all Internet Web site content relating to Radio Unica
and all Domain Names that include "Radio Unica" or any part or variation of
"Radio Unica";
(c) all cash, cash equivalents or similar type investments of each
Seller, such as certificates of deposit, Treasury bills and other marketable
securities on hand and/or in banks, and all accounts receivable generated from
broadcasts by the Sellers prior to the Closing Date, but excluding an amount
equal to all insurance proceeds received by Radio Unica or any of its Affiliates
between the date hereof and the Closing and that were received on account of any
damage to or loss suffered by any Purchased Asset that is not repaired, replaced
or restored by the Sellers prior to the Closing Date;
(d) all Contracts to which any Seller is a party that (i) have been
terminated in accordance herewith, (ii) have expired prior to the Closing Date
in the ordinary course of business, or (iii) do not constitute Assigned
Contracts pursuant to Section 2.5 hereof or are not otherwise assumed by the
Purchaser pursuant to Section 2.1(d);
(e) any and all Contracts for satellite capacity, transmission or
related services to which the Network operated by Radio Unica is a party;
(f) all of the rights, title and interests held by the Network
operated by Radio Unica in and to any and all Contracts authorizing the Network
operated by Radio Unica to broadcast all or a portion of any sporting event;
(g) all of the rights, title and interests held by the Network
operated by Radio Unica in and to any and all Contracts pursuant to which the
Network operated by Radio Unica has agreed to sponsor any promotional event;
(h) all of the rights, title and interests held by the Network
operated by Radio Unica in and to all other Contracts to which the Network is a
party;
(i) all telephone numbers used by the Network operated by Radio
Unica, including, but not limited to, (▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ and related
extensions;
15
(j) the Network Assets if Radio Unica shall have provided the notice
and payment therefor pursuant to the proviso in Section 2.1;
(k) the minute books, stockholder and transfer records, Tax,
accounting and billing records and Tax Returns (except for the Purchaser's
rights of access set forth herein) of the Sellers;
(l) contracts of insurance and all insurance proceeds or claims made
by the Sellers relating to property or equipment repaired, replaced or restored
by the Sellers prior to the Closing Date, errors and omissions contracts of
insurance, producers liability insurance and all other contracts of insurance
relating to the Excluded Assets;
(m) any and all claims, lawsuits or other causes of action any Seller
may have with respect to Excluded Assets or transactions with respect to
Excluded Assets prior to the Closing Date and the proceeds thereof;
(n) any assets of or held in respect of any Employee Benefit Plan;
(o) any stock or other equity interests or any debt securities or
promissory notes or other securities convertible into or exchanged for the
foregoing owned by Radio Unica or any of its Subsidiaries in, or issued by, any
Subsidiaries, including, but not limited to, the Sellers, Radio Unica Network,
Inc., Mass Promotions, Inc., Mass Inc., Radio Unica of San Diego Inc., Radio
Unica of San Diego License Corp., UnicaLibros Publishing Corp., Radio Unica
Sales Corp., Radio Unica of Denver Inc. and Radio Unica of Denver License Corp.,
or any other Person;
(p) all refunds, rebates or similar payments with respect to Taxes to
the extent such Taxes were paid by or on behalf of any Seller; and
(q) all claims, rights or causes of action by or of the Sellers or
Radio Unica under Sections 544, 545, 547 and 548 of the Bankruptcy Code (other
than any such claims as may exist against the Purchaser).
Section 2.3. ASSUMED LIABILITIES. Upon the terms and subject to the
conditions of this Agreement, at the Closing the Purchaser (or its Designees)
shall assume the following liabilities and obligations, but only to the extent
such liabilities or obligations relate to Purchased Assets which are transferred
and assigned to the Purchaser or its Designees at the Closing or otherwise
pursuant to this Agreement (collectively, the "ASSUMED LIABILITIES"):
(a) any liabilities and obligations relating to events or
circumstances occurring from and after the Closing Date arising out of or
resulting from the ownership, lease, license, operation or disposition of the
Purchased Assets by the Purchaser or any of its Designees;
(b) any liabilities and obligations relating to events or
circumstances occurring after the Closing Date under the Assigned Contracts;
16
(c) liabilities related to the employment or termination of
employment on and after the Closing of any person who becomes an employee of the
Purchaser or any Affiliate thereof, including but not limited to any liability
arising under the WARN Act; and
(d) liability for Taxes as set forth in Section 3.5 and 7.5(b).
Section 2.4. EXCLUDED LIABILITIES. Notwithstanding anything
contained in this Agreement to the contrary, neither the Purchaser nor any
Designee shall assume or agree to pay, satisfy, discharge or perform, and shall
not be deemed by virtue of the execution and delivery of this Agreement or any
Related Document (except to the extent expressly provided in any Related
Document to which the Purchaser or any Designee is a party), or as a result of
the consummation of the transactions contemplated by this Agreement or such
Related Document, to have assumed, or to have agreed to pay, satisfy, discharge
or perform, and shall not be liable for, any liability, obligation, Contract or
indebtedness of Radio Unica, any Seller or any other Affiliate of Radio Unica or
any other Person, whether primary or secondary, direct or indirect, other than
the Assumed Liabilities (all such liabilities and obligations that are NOT
Assumed Liabilities are referred to herein as the "EXCLUDED LIABILITIES")
including, without limitation, those set forth below:
(a) all liabilities, obligations and indebtedness of Radio Unica, any
Seller or any other Affiliate of Radio Unica to the extent they relate to any of
the Excluded Assets;
(b) liability for Taxes as set forth in Section 3.5;
(c) all liabilities, obligations and indebtedness for any legal,
accounting, investment banking, brokerage or similar fees or expenses incurred
by Radio Unica or any Seller or any other Affiliate of Radio Unica, in
connection with, resulting from or attributable to the transactions contemplated
by this Agreement;
(d) all obligations or liabilities for any borrowed money incurred by
Radio Unica or any Seller or any other Affiliate of Radio Unica;
(e) all obligations of Radio Unica or any Seller or any other
Affiliate of Radio Unica related to the ownership or issuance of any capital
stock or other equity interest of Radio Unica or the Sellers, including any
stock options or warrants;
(f) all liabilities, obligations and indebtedness (whether past,
present, future, known or unknown, liquidated or unliquidated, accrued or
unaccrued) of Radio Unica or any Seller or any other Affiliate of Radio Unica
resulting from, caused by or arising out of, directly or indirectly, the conduct
of their respective businesses or the ownership or lease of any of their
respective properties or assets or any properties or assets previously used by
Radio Unica, any Seller or any other Affiliate of Radio Unica at any time prior
to or on the Closing Date, including, without limitation, such of the foregoing
(i) as constitute, may constitute or are alleged to constitute a tort, breach of
contract or violation of requirement of any Law or (ii) that relate to, result
in or arise out of the existence or imposition of any liability or obligation to
remediate or contribute or otherwise pay any amount under or in respect of any
EHS Law or other Law;
17
(g) all obligations to provide benefits coverage, notice or severance
under WARN, Section 4980B of the Code and Sections 601 through 608 of ERISA
("COBRA") or any Employee Benefit Plan, or any applicable Laws of any state
providing for similar benefits or protections with respect to any employees (and
former employees and qualified beneficiaries) of Radio Unica, any Seller or any
other Affiliate of Radio Unica, including employees on disability leave on the
Closing Date with respect to any qualifying event (within the meaning of COBRA)
that occurs at or before the Closing;
(h) all liabilities, known or unknown, of Radio Unica, any Seller or
any other Affiliate of Radio Unica relating to the recruitment, employment,
potential employment or termination of employment of any employee of Radio
Unica, any Seller or any other Affiliate of Radio Unica, including employees on
disability leave on the Closing Date with respect to any qualifying event
(within the meaning of COBRA) that occurs at or before the Closing, including
any claims arising under any Employee Benefit Plan or Contract pertaining
thereto, except as otherwise provided in Section 2.3(c) or as may arise out of
the Purchaser's breach of the provisions of Section 8.12;
(i) any liabilities for any and all Transfer Taxes due as a result of
the transactions contemplated by this Agreement; and
(j) all mechanics', workmen's, repairmen's, warehousemen's, carriers'
or other like Liens attaching to any Purchased Asset as a result of events or
circumstances on or prior to the Closing Date.
Section 2.5. CONTRACT ASSUMPTION AND ASSIGNMENT.
(a) ASSIGNED CONTRACTS. SCHEDULE 2.5(a) to the Sellers' Disclosure
Letter sets forth a list of all Contracts relating to the Business. SCHEDULE
2.5(a) is organized according to type of Contract and thereafter by counterparty
and, with respect to any Contract that consists of a master agreement and
separate purchase orders, statements of work, invoices, supplements, appendices,
schedules or amendments, SCHEDULE 2.5(a) describes each such purchase order,
statement of work, invoice, supplement, appendix, schedule or amendment in
reasonable detail. SCHEDULE 2.5(a) specifies with respect to each Contract set
forth thereon, the name of such Contract, the date of such Contract and any
amendments thereto, the parties to such Contract, and the correct address for
notices to counterparties thereunder. The Sellers shall assign and the Purchaser
shall assume those Contracts set forth on SCHEDULE 2.5(a) that are identified by
written notice from the Purchaser no later than twenty (20) Business Days after
the date hereof as Contracts which the Purchaser desires to assume
(collectively, the "ASSIGNED CONTRACTS") (it being understood that there shall
be no adjustment to the Purchase Price as a result of any exclusion of
properties, assets, Contracts or rights specified in any such notice).
(b) ADDITIONAL CONTRACTS. Prior to any Seller entering into or
acquiring any Contract after the date hereof as permitted under Section
8.9(b)(ii) that relates to the Purchased Assets from and after the Closing Date,
such Seller shall promptly notify the Purchaser and afford the Purchaser a
reasonable opportunity, prior to executing or acquiring such Contract, to
comment on the terms thereof. Upon executing or acquiring such Contract, the
Seller shall promptly furnish the Purchaser a fully executed copy of such
Contract.
18
(c) CONFIDENTIALITY. Each of the Parties hereby agrees (i) that it is
in the best interests of the Sellers and the Purchaser for the lists of, or any
other information regarding, the Assigned Contracts, specifically including the
type of information set forth in SCHEDULE 2.5(a) to the Sellers' Disclosure
Letter (such information, the "CONTRACT CONFIDENTIAL INFORMATION"), to be kept
confidential and not to be revealed, disclosed or divulged to any other party
(specifically excluding (x) the agents, advisors and actual or potential
investors and lenders of such Party who need to know such information and who
are advised of the confidential nature of such information, (y) the
representatives of any official committee appointed in the Bankruptcy Cases who
enter into a customary confidentiality agreement and their respective advisors
and (z) the Bankruptcy Court (collectively, the "INTERESTED PARTIES")) prior to
the date (the "NOTICE DATE") on which the counterparties to the Assigned
Contracts are given notice of a motion with the Bankruptcy Court to have the
Sellers assign the Assigned Contracts to the Purchaser or its Designees, (ii)
not to disclose any Contract Confidential Information to any third party (other
than the Interested Parties) other than as is required to be given to parties to
any of the Assigned Contracts ("CONTRACT PARTIES"), (iii) that the Contract
Confidential Information shall be kept confidential from and shall not be
disclosed to any party (other than any Interested Party) entitled to receive
notice in the Bankruptcy Cases until after the Notice Date, and (iv)
notwithstanding any of the foregoing, the Purchaser may contact any of the
Contract Parties in order to negotiate with such Contract Parties the possible
assignment and, if applicable, assumption of any Assigned Contracts, PROVIDED
that the Purchaser shall use its commercially reasonable efforts to notify and
coordinate with Radio Unica prior to any such negotiation.
Section 2.6. CONTRACT OBLIGATIONS. The Purchaser shall be obligated
to pay any amounts for services rendered and goods provided on and after the
Closing Date under any Assigned Contract validly assigned to the Purchaser or
its Designees.
Section 2.7. NO EXPANSION OF THIRD PARTY RIGHTS. The assumption by
the Purchaser or any of its Designees of the Assumed Liabilities shall in no way
expand the rights or remedies of any third party against the Purchaser, Radio
Unica or the Sellers as compared to the rights and remedies which such third
party would have had against Radio Unica or the Sellers absent the Bankruptcy
Cases and had the Purchaser or any of its Designees not assumed such Assumed
Liabilities. Without limiting the generality of the preceding sentence, the
assumption by the Purchaser or any of its Designees of the Assumed Liabilities
shall not create any third-party beneficiary rights other than with respect to
the Person that is the obligee of such Assumed Liability.
ARTICLE III
PURCHASE PRICE AND DEPOSIT
Section 3.1. PURCHASE PRICE. In consideration for the sale,
assignment, transfer and conveyance of the Purchased Assets, at Closing the
Purchaser shall pay the sum of One Hundred Forty-Nine Million Five Hundred
Twenty-Five Thousand Dollars ($149,525,000) (the "PURCHASE PRICE") to the
Sellers, plus or minus any adjustments to be made pursuant to Sections 3.5 and
8.13 hereof, and less the ▇▇▇▇▇▇▇ Money Deposit and the Holdback Amount (as so
adjusted, the "ADJUSTED PURCHASE PRICE"), and the Purchaser (or its Designees)
shall assume the Assumed Liabilities.
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Section 3.2. Escrow Deposit.
(a) Concurrently with the execution of this Agreement, the Purchaser
shall deliver to the escrow agent designated in the Escrow Agreement (the
"ESCROW AGENT"), the sum of Seven Million Five Hundred Thousand Dollars
($7,500,000) to be held as an ▇▇▇▇▇▇▇ money deposit (together with all interest
thereon, the "▇▇▇▇▇▇▇ MONEY DEPOSIT") pursuant to an Escrow Agreement executed
contemporaneously with the execution of this Agreement (the "ESCROW AGREEMENT")
in the form of EXHIBIT B hereto. Pursuant to the Escrow Agreement, the ▇▇▇▇▇▇▇
Money Deposit shall be applied as follows:
(i) Upon the Closing, the ▇▇▇▇▇▇▇ Money Deposit shall be
applied as a deposit towards the Purchase Price as provided in Section 3.3.
(ii) In the event that this Agreement is terminated for
any reason whatsoever (other than pursuant to Section 10.1(h) or Section
10.1(j)) the ▇▇▇▇▇▇▇ Money Deposit shall be returned to the Purchaser.
(iii) In the event that this Agreement is terminated for
the reasons set forth in Section 10.1(j), Six Million Dollars ($6,000,000)
of the ▇▇▇▇▇▇▇ Money Deposit shall be paid to Radio Unica and the balance
of the ▇▇▇▇▇▇▇ Money Deposit shall be returned to the Purchaser; PROVIDED,
HOWEVER, that if the FCC Consent has not been granted by March 31, 2004,
then the portion of the ▇▇▇▇▇▇▇ Money Deposit payable to Radio Unica in the
event that this Agreement is terminated for the reasons set forth in
Section 10.1(j) shall be Four Million Five Hundred Thousand Dollars
($4,500,000) and the remainder of the ▇▇▇▇▇▇▇ Money Deposit shall be
returned to the Purchaser.
(iv) In the event that this Agreement is terminated for
the reason set forth in Section 10.1(h), the ▇▇▇▇▇▇▇ Money Deposit shall
continue to be held in escrow pursuant to the Escrow Agreement pending
resolution of any related claims for damages.
(b) The Purchaser shall be treated as the owner of the ▇▇▇▇▇▇▇ Money
Deposit and any interest or dividends earned thereon for all Tax purposes.
(c) The ▇▇▇▇▇▇▇ Money Deposit shall not be deemed to be liquidated
damages and, except as set forth in Section 10.5, shall not limit any of the
Parties' available rights and remedies under this Agreement, at law or in equity
or otherwise.
Section 3.3. PAYMENT OF PURCHASE PRICE. At the Closing, (a) the
Purchaser shall transfer or cause its Designee to transfer the Adjusted Purchase
Price to the Sellers by wire transfer of immediately available funds into an
account designated in writing by the Sellers, in accordance with the Bankruptcy
Plan, (b) the ▇▇▇▇▇▇▇ Money Deposit shall be paid to the Sellers pursuant to the
Escrow Agreement, and (c) the Holdback Amount shall be paid by the Purchaser or
its Designee into escrow in accordance with the Holdback Escrow Agreement.
Section 3.4. ALLOCATION OF PURCHASE PRICE. The Purchaser shall
allocate the Purchase Price and the Assumed Liabilities (and other relevant
items, including those pursuant to Section 3.5 and Article XI), as of the
Closing, among the classes of assets (as described in the Treasury Regulations
promulgated under Section 338 of the Code) to which the Purchased
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Assets relate (the "ALLOCATION") in accordance with section 1060 of the Code and
the regulations promulgated thereunder (or any similar provision of local or
state Tax law) and shall submit the proposed Allocation to Radio Unica not later
than sixty (60) days after the Closing. If there is any adjustment to the
Purchase Price or the Assumed Liabilities (or other relevant items), the
Purchaser shall modify the Allocation by allocating such adjustment among the
Purchased Assets in accordance with section 1060 of the Code and the regulations
promulgated thereunder (or any similar provision of local or state Tax law) and
shall submit the new proposed Allocation to Radio Unica within sixty (60) days
of such adjustment. If, within twenty (20) days after the receipt of the
proposed Allocation, Radio Unica notifies the Purchaser in writing that Radio
Unica has concluded that the proposed Allocation is not in accordance with
section 1060 of the Code and the regulations promulgated thereunder (or any
similar provision of local or state Tax law), then Radio Unica and the Purchaser
shall attempt in good faith to resolve their disagreement within the twenty (20)
days following Radio Unica's notification to the Purchaser of such disagreement.
If Radio Unica does not so notify the Purchaser within twenty (20) days of
receipt of the proposed Allocation, or upon resolution of the dispute by Radio
Unica and the Purchaser, the proposed Allocation shall become the final
Allocation. If Radio Unica and the Purchaser are unable to resolve their
disagreement within the twenty (20) days following any such notification by
Radio Unica, the dispute shall be submitted to a nationally recognized
independent accounting firm chosen jointly by the Purchaser and Radio Unica, for
resolution within twenty (20) days of such submission. All Parties shall
cooperate fully to facilitate a prompt determination of the Allocation. For all
Tax purposes, the transactions contemplated by this Agreement shall be reported
in a manner consistent with the final Allocation and neither Radio Unica, the
Purchaser, nor any of their respective Affiliates, shall take any position
inconsistent therewith in any Tax Return (including IRS Form 8594), in any
litigation or otherwise, unless required by applicable Law. The fees, costs and
expenses of the accounting firm retained to resolve any dispute with respect to
the Allocation, if applicable, shall be borne equally by the Purchaser, on the
one hand, and Radio Unica, on the other.
Section 3.5. PRORATION OF INCOME AND EXPENSES; ALLOCATION OF SALES
TAX.
(a) The Purchaser and the Sellers agree that, except as otherwise
provided in this Agreement, all of the items customarily prorated relating to
the ownership, lease, maintenance and operation of the Purchased Assets,
including those listed below (but not including income Taxes), shall be prorated
as of the Closing Date, with the Sellers liable to the extent such items relate
to any period (or portion thereof) ending on or prior to the Closing Date, and
the Purchaser liable to the extent such items relate to any period (or portion
thereof) ending after the Closing Date (measured by calendar days):
(i) personal property, real estate, occupancy and similar
Taxes, but not income, profits or similar Taxes, on or arising out of, in
respect of, or in connection with, the ownership, lease, maintenance or
operation of the Purchased Assets;
(ii) any permit, license, registration, compliance
assurance fees or other fees arising out of, in respect of, or in
connection with, any FCC Licenses or other Acquired Station Licenses;
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(iii) payments under the Studio Leases, Tower Site Leases
or any other Lease constituting an Assigned Contract;
(iv) payments under the Time Brokerage Agreements that
constitute Assigned Contracts;
(v) sewer rents and charges for water, telephone,
electricity and other utilities arising out of, in respect of, or in
connection with, the Purchased Assets;
(vi) prepaid operating and maintenance expenses; and
(vii) all other items normally adjusted in connection with
similar transactions.
(b) Except as otherwise agreed by the Parties, the net amount of all
such prorations and adjustments provided for in subsection (a) above shall be
settled and paid on the Closing Date by appropriate adjustment to the Purchase
Price. As to those prorations and adjustments not readily ascertained on the
Closing Date, the Purchaser and the Sellers will use their commercially
reasonable efforts to resolve (using reasonable estimates where necessary) and
pay all adjustments and prorations hereunder within ninety (90) days of the
Closing Date. In the event of any disputes between the Parties as to such
adjustments, the amounts not in dispute shall nonetheless be paid at such time
and such disputes shall be resolved by an independent certified public
accountant mutually acceptable to the Purchaser and Radio Unica, and the fees
and expenses of such accountant shall be paid one-half by the Purchaser and
one-half by Radio Unica. The decision of such accountant shall be rendered
within one hundred eighty (180) days after the Closing Date and shall be
conclusive and binding on the Parties.
ARTICLE IV
CLOSING
Section 4.1. CLOSING. Upon the terms and subject to the conditions
hereof, the closing of the transactions contemplated hereby (the "CLOSING")
shall take place at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ at 10:00 a.m., local time, on the
second (2nd) Business Day following the satisfaction or waiver (subject to
applicable Law) of the conditions precedent specified in Article IX (other than
those conditions that by their nature are to be fulfilled only at the Closing,
but subject to the fulfillment or waiver (subject to applicable Law) of such
conditions) or at such other time and place as the Parties may mutually agree in
writing (such date, the "CLOSING DATE").
Section 4.2. DELIVERIES AT CLOSING. (a) At the Closing, the Sellers
shall deliver, or cause to be delivered, to the Purchaser the following:
(i) the officer's certificates contemplated by Section
9.3(c);
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(ii) a ▇▇▇▇ of sale duly executed by the Sellers and Radio
Unica in form and substance reasonably satisfactory to the Purchaser and
Radio Unica transferring the Purchased Assets to the Purchaser;
(iii) copies of all consents, waivers and approvals
obtained by Radio Unica and any Seller that are required for the
consummation of the transactions contemplated by this Agreement including
the Confirmation Order;
(iv) assignment and assumption agreements duly executed by
the Sellers relating to the Assigned Contracts in form and substance
reasonably satisfactory to the Purchaser and Radio Unica;
(v) deeds duly executed by the applicable Sellers in
recordable form under applicable Law in form and substance reasonably
acceptable to the Purchaser and Radio Unica transferring the Owned Real
Property to the Purchaser or each applicable Designee;
(vi) an Assignment of Licenses duly executed by the
applicable Licensee in form and substance reasonably acceptable to the
Purchaser and Radio Unica transferring the Acquired Station Licenses to the
Purchaser or each Designee;
(vii) a joint notice to the Escrow Agent duly executed by
Radio Unica to release the ▇▇▇▇▇▇▇ Money Deposit to the Sellers in
accordance with the terms and conditions of the Escrow Agreement;
(viii) the Holdback Escrow Agreement duly executed by Radio
Unica, each Seller and the escrow agent thereunder;
(ix) a statement duly executed by each Seller pursuant to
Treasury Regulation Section 1.1445-2(b), certifying as to each such
Seller's non-foreign status; and
(x) such other certificates and evidences of transfer as
the Purchaser may reasonably require.
(b) At the Closing, the Purchaser shall deliver, or cause to be
delivered, to Radio Unica and the Sellers, the following:
(i) the Adjusted Purchase Price, calculated as set forth
in Section 3.1 and delivered in accordance with Section 3.3;
(ii) the officer's certificates contemplated by Section
9.2(c);
(iii) copies of all consents, waivers and approvals
obtained by the Purchaser or its Affiliates that are required for the
consummation of the transactions contemplated by this Agreement;
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(iv) assignment and assumption agreements duly executed by
the Purchaser or its Designee relating to the Assigned Contracts in form
and substance reasonably satisfactory to the Purchaser and Radio Unica;
(v) a joint notice to the Escrow Agent duly executed the
Purchaser to release the ▇▇▇▇▇▇▇ Money Deposit to the Sellers in accordance
with the terms and conditions of the Escrow Agreement;
(vi) the Holdback Escrow Agreement duly executed by the
Purchaser; and
(vii) such other certificates and evidences of transfer as
either Radio Unica or any Seller may reasonably require.
Section 4.3. CLOSING WITH RESPECT TO ENTIRETY OF ACQUIRED STATIONS.
(a) The Closing shall occur only with respect to the entirety of the
Acquired Stations as a whole, notwithstanding that the conditions to Closing
with respect to each Acquired Station may be satisfied at different times;
PROVIDED, HOWEVER, that, in the event that all of the conditions to the Closing
are satisfied or waived other than the FCC Consent relating to the two (2)
stations owned and operated by Radio Unica of Miami, Inc. and Radio Unica of
Miami License Corp. (the "MIAMI STATIONS") having become a Final Order, then (i)
an initial Closing shall occur with respect to all of the Acquired Stations
other than the Miami Stations (the "INITIAL CLOSING") and (ii) a subsequent
Closing shall occur with respect to the Miami Stations on the second (2nd)
Business Day following the FCC Consent with respect to such stations having
become a Final Order or at such other time as the Parties may mutually agree in
writing (the "SUBSEQUENT CLOSING").
(b) For purposes of determining the terms and conditions of any
Initial Closing, (i) all references in this Agreement to the "Purchase Price"
shall refer to One Hundred Thirty-Nine Million Five Hundred Twenty-Five Thousand
Dollars ($139,525,000), (ii) all references in this Agreement to the "Adjusted
Purchase Price" shall refer to the Purchase Price, as modified in Section
4.3(b)(i), adjusted to account for the items in Section 3.5 relating to the
Acquired Stations other than the Miami Stations, less the ▇▇▇▇▇▇▇ Money Deposit
and the Holdback Amount (as provided in Section 4.3(b)(ix)), (iii) all
references in this Agreement to the "Closing" (other than the references in
Section 4.3(a)) shall refer to the Initial Closing, (iv) all references in this
Agreement to the "Closing Date" shall refer to the date of the Initial Closing,
(v) all references in this Agreement to the "Purchased Assets" and any defined
terms denoting some portion of the "Purchased Assets" shall refer to the
Purchased Assets other than the Miami Stations and the other Purchased Assets
used or held for use in connection with the operation of the Miami Stations,
(vi) all references in this Agreement to the "Assumed Liabilities" shall refer
to the Assumed Liabilities other than the Assumed Liabilities relating to the
Miami Stations, (vii) all references in this Agreement to the Sellers in Section
3.5 and Section 4.2 shall refer to the Sellers other than Radio Unica of Miami,
Inc. and Radio Unica of Miami License Corp. (collectively, the "MIAMI SELLERS"),
(viii) the ▇▇▇▇▇▇▇ Money Deposit shall be released and applied against the
Purchase Price in connection with the Initial Closing, (ix) the Holdback Amount
paid into escrow at the Initial Closing shall be Four Hundred Sixty-Four
Thousand
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Dollars ($464,000), and (x) all other actions or matters that are conditions to
or are to be performed in connection with the Closing shall be actions or
matters that are conditions to or are to be performed in connection with the
Initial Closing, and all time periods calculated in reference to the Closing
shall be calculated in reference to the Initial Closing.
(c) For purposes of determining the terms and conditions of the
Subsequent Closing, (i) all references in this Agreement to the "Purchase Price"
shall refer to Ten Million Dollars ($10,000,000), (ii) all references in this
Agreement to the "Adjusted Purchase Price" shall refer to the Purchase Price, as
modified in Section 4.3(c)(i), adjusted to account for the adjustment items in
Section 3.5 relating to the Miami Stations, less the Holdback Amount (as
provided in Section 4.3(c)(viii)), (iii) all references in this Agreement to the
"Closing" (other than the references in Section 4.3(a)) shall refer to the
Subsequent Closing, (iv) all references in this Agreement to the "Closing Date"
shall refer to the date of the Subsequent Closing, (v) all references in this
Agreement to the "Purchased Assets" and any defined terms denoting some portion
of the "Purchased Assets" shall refer to the Purchased Assets that were not
transferred to the Purchaser or its Designees at the Initial Closing, (vi) all
references in this Agreement to the "Assumed Liabilities" shall refer to the
Assumed Liabilities that were not assumed by the Purchaser or its Designees at
the Initial Closing, (vii) all references in this Agreement to the Sellers in
Section 3.5 and Section 4.2 shall refer to the Miami Sellers, (viii) the
Holdback Amount paid into escrow at the Subsequent Closing shall be Thirty-Six
Thousand Dollars ($36,000), and (ix) all other actions or matters that are
conditions to or are to be performed in connection with the Closing shall be
actions or matters that are conditions to or are to be performed in connection
with the Subsequent Closing, and all time periods calculated in reference to the
Closing shall be calculated in reference to the Subsequent Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF RADIO UNICA
The Purchaser specifically acknowledges and agrees to the following
with respect to the representations and warranties of Radio Unica:
(a) Without limitation of its rights under Sections 8.5 and 8.10 or
its right to rely on the representations and warranties of Radio Unica and the
Sellers set forth in this Article V, the Purchaser has conducted its own due
diligence investigation of the Purchased Assets.
(b) Except when the context specifically requires, Radio Unica and
the Sellers make no representations or warranties in this Article V with respect
to any Excluded Assets.
Subject to the foregoing, except as disclosed in the written statement
delivered by Radio Unica to the Purchaser contemporaneously with the execution
and delivery of this Agreement (the "SELLERS' DISCLOSURE LETTER"), Radio Unica
and each Seller represents and warrants, jointly and severally, to the Purchaser
as set forth below. All references in this Article V to any Schedule to this
Agreement shall be deemed to refer to the relevant section of the Sellers'
Disclosure Letter.
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Section 5.1. ORGANIZATION, AUTHORITY AND QUALIFICATION. Each of
Radio Unica and each Seller (a) is a corporation duly organized, validly
existing and, where applicable, is in good standing under the Laws of the state
of its incorporation; (b) has all requisite corporate power and authority to
own, lease or operate the assets it now owns, leases or operates; and (c) is
duly qualified or licensed to do business and, where applicable, is in good
standing in each jurisdiction in which the ownership or use of its assets or
conduct of its business requires it to be so qualified or licensed and in good
standing except where any such failure to be so qualified or licensed and in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect on Radio Unica or on the Purchased Assets.
Section 5.2. POWER AND AUTHORITY RELATIVE TO THIS AGREEMENT. Subject
to the Confirmation Order, each of Radio Unica and each of the Sellers has the
requisite corporate power and authority to execute and deliver this Agreement
and any Related Documents to which it is or will be party and to perform the
transactions contemplated hereby and thereby to be performed by it. All
corporate proceedings and corporate actions on the part of Radio Unica and each
Seller required by Law or its organizational documents to authorize this
Agreement and the Related Documents to which it is or will be a party, the
performance of the obligations hereunder and thereunder to be performed by it
and the consummation of the transaction contemplated herein and therein have
been duly taken or will have been duly taken following the Solicitation Period
(as defined in the Bankruptcy Plan), and, except as described herein, no other
corporate proceedings or corporate actions on the part of any of Radio Unica or
any Seller, its board of directors or its stockholders are necessary. As of the
date hereof, the Board of Directors and the board of directors of each Seller
have resolved to solicit votes for the Bankruptcy Plan which contemplates
approval of this Agreement and the transactions contemplated hereby. Subject to
the Confirmation Order (and the terms thereof), this Agreement is, and each of
the Related Documents to which each of Radio Unica and each Seller is or will be
a party will upon execution be, a valid and binding agreement enforceable
against Radio Unica and each such Seller in accordance with its terms. Subject
to the Break-Up Payment Claim Order or the Break-Up Payment Order, as
applicable, Radio Unica has full power and authority to grant the Break-Up
Payment without further order of the Bankruptcy Court.
Section 5.3. NO VIOLATION; CONSENTS AND APPROVALS.
(a) Subject to receiving the consents or waivers referred to on
SCHEDULE 5.3(a) of the Sellers' Disclosure Letter and the consents referred to
in Section 5.3(b), the execution and delivery by Radio Unica and each Seller of
this Agreement and each Related Document to which it is a party and the
consummation of the transactions contemplated hereby and thereby do not and will
not (i) violate any provision of the organizational documents of Radio Unica or
any Seller, (ii) conflict with, require the consent of a third party under,
violate, result in the breach of, constitute a default under, or give rise to
any right of acceleration, cancellation or termination of any right or
obligation of Radio Unica or any Seller under any Contract to which Radio Unica
or any Seller is a party or by which Radio Unica or any Seller, or any of their
respective properties or assets are bound, (iii) violate any Order of any
Governmental Entity to which Radio Unica or any Seller is bound or subject, (iv)
subject to the entry of the Confirmation Order, violate any applicable Law, or
(v) except as provided for herein, result in the imposition or creation of any
Lien upon the Purchased Assets other than a Permitted Lien, other than, in the
case of clauses (i) through (iv), any conflict, violation, breach, default,
requirement for consents, rights of
26
acceleration, cancellation or termination that would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect with
respect to Radio Unica or the Purchased Assets.
(b) Except as set forth on SCHEDULE 5.3(b) of the Sellers' Disclosure
Letter, no Order or permit issued by, or declaration or filing with, or
notification to, or waiver from any Governmental Entity is required on the part
of Radio Unica or any Seller in connection with the execution and delivery of
this Agreement and each Related Document to which it is or will be a party, or
the compliance or performance by Radio Unica or any Seller with any provision
contained therein, except for any such requirements, the failure of which to be
obtained or made would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect with respect to Radio Unica or the
Purchased Assets.
(c) As of the date of this Agreement, the holders of more than 50% of
the Common Stock and the holders of at least 66 2/3% of the outstanding
indebtedness of Radio Unica evidenced by the Senior Notes have indicated their
approval and endorsement of this Agreement and the transactions contemplated
hereunder, and, in the case of the holders of the Senior Notes, letters of
confirmation and support have been provided to the Purchaser.
Section 5.4. REAL ESTATE; TITLE TO PROPERTIES.
(a) OWNED REAL PROPERTY. All of the real property owned by the
Sellers is identified on SCHEDULE 2.1(c) of the Sellers' Disclosure Letter
(collectively, the "OWNED REAL PROPERTY"). The Sellers have good and marketable,
fee simple title in and to the Owned Real Property.
(i) SUFFICIENCY OF PROPERTY/COMPLIANCE WITH THE LAW. The
Sellers have sufficient title to such easements, rights of way and other
rights appurtenant to each of the Owned Real Properties as are necessary to
permit ingress and egress to and from the Owned Real Property to a public
way, and the improvements on the Owned Real Property have access to such
sewer, water, gas, electric, telephone and other utilities as may be
necessary to allow the business of the Seller operated thereon to be
operated in the ordinary course. Except as set forth on SCHEDULE 5.4(a) of
the Sellers' Disclosure Letter, there has been no damage to the
improvements located on the Owned Real Property that affects the conduct of
the Business in any material respect that has not been properly repaired or
remedied. Except as set forth on SCHEDULE 5.4(a) of the Sellers' Disclosure
Letter, there are no lessees or tenants at will in possession of any
portion of any of the Owned Real Property other than the applicable Seller,
whether as lessee, tenants at will, trespassers or otherwise. The current
use of the Owned Real Property and all parts thereof does not violate any
restrictive covenants of record affecting any of the Owned Real Property.
All necessary licenses or permits by any Governmental Entity with respect
to the Owned Real Property have been obtained, have been validly issued and
are in full force and effect. The Sellers have received no notice from any
Governmental Entity of any violation of any zoning, building, fire, water,
use, health, or other law, ordinance, code, regulation, license, permit or
authorization issued in respect of any of the Owned Real Property that has
not been heretofore corrected.
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(ii) REAL PROPERTY TAXES. Except as set forth in SCHEDULE
5.4(a) of the Sellers' Disclosure Letter, the Sellers have received no
written notice of any pending or threatened special assessment or
reassessment of all or any portion of any of the Owned Real Property.
(iii) CONDEMNATION. There is no pending or, to the
Knowledge of Radio Unica, threatened condemnation of all or any part of the
Owned Real Property.
(iv) INSURABILITY. The Sellers have received no notice
from any insurance company of any material defects or inadequacies in the
Owned 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.
(b) LEASED REAL PROPERTY. All of the real property leased by the
Sellers as tenant or lessee is identified on SCHEDULE 2.1(c) of the Sellers'
Disclosure Letter (collectively referred to herein as the "LEASED REAL
PROPERTY").
(i) LEASES. All of the leases of any of the Leased Real
Property (collectively, the "LEASES") are as set forth on SCHEDULE 2.1(c)
of the Sellers' Disclosure Letter. True and correct copies of the Leases
have been made available to the Purchaser. The information with respect to
each of the Leases set forth in SCHEDULE 2.1(c) is complete, accurate, true
and correct in all material respects. With respect to each of the Leases,
except as set forth on SCHEDULE 5.4(b):
(A) 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;
(B) all obligations of the landlord or lessor under the Leases that
have accrued have been performed, and no landlord or lessor is in default
under or in arrears in the payment of any sum or in the performance of any
obligation required of it under any Lease, and no circumstance presently
exists which, with notice or the passage of time, or both, would give rise
to a default by the landlord or lessor under any Lease except, in all cases
as such as will not materially detract from the marketability or value of
the Leased Real Property and do not impair the operations of the lessee
thereof in any material respect;
(C) all obligations of the tenant or lessee under the Leases that
have accrued have been performed, and no Seller is in default under or in
arrears in the payment of any sum or in the performance of any obligation
required of it under any Lease, and no circumstance presently exists which,
with notice or the passage of time, or both, would give rise to a default
by any Seller except, in all cases, as such as will not materially detract
from the marketability or value of the Leased Real Property and do not
impair the operations of the lessee thereof in any material respect; and
(D) there are no consents of any landlord or lessor required to
transfer the Leased Real Property to the Purchaser.
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(ii) COMPLIANCE WITH LAW. The Sellers have received no
notice from any Governmental Entity of any violation of any zoning,
building, fire, water, use, health, or other law, ordinance, code,
regulation, license, permit or authorization issued in respect of any of
the Leased Real Property that has not been heretofore corrected.
(iii) REAL PROPERTY TAXES. Except as set forth in SCHEDULE
5.4(b) of the Sellers' Disclosure Letter, the Sellers have received no
written notice of any pending or threatened special assessment or
reassessment of all or any portion of any of the Leased Real Property.
(iv) CONDEMNATION. There is no pending or, to the
Knowledge of Radio Unica, threatened condemnation of all or any part of the
Leased Real Property.
(v) INSURABILITY. The Sellers have received no notice
from any insurance company of any material defects or inadequacies in the
Leased 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.
Section 5.5. PERSONAL PROPERTY. SCHEDULE 2.1(b) of the Sellers'
Disclosure Letter contains a description of the items of Tangible Personal
Property (having a replacement cost of not less than $10,000 for each item) that
comprise all the tangible personal property used or held for use in connection
with the Business or which permit the operation of each Acquired Station as now
conducted. The Sellers have good title to, or a valid leasehold or license
interest in, all Tangible Personal Property, and none of such property is
subject to any claims (as defined under the Bankruptcy Code), interests or
Liens, except for Permitted Liens. Except as otherwise disclosed in SCHEDULE 5.5
of the Sellers' Disclosure Letter, all Tangible Personal Property (i) is in good
operating condition and repair (ordinary wear and tear excepted), (ii) is
available for immediate use in the business and operation of each of the
Acquired Stations as currently conducted and (iii) together with the other
Purchased Assets, permits each of the Acquired Stations to operate in accordance
with the terms of their respective FCC Licenses and the FCC Rules.
Section 5.6. LITIGATION. Except for the Bankruptcy Case and as set
forth on SCHEDULE 5.6 of the Sellers' Disclosure Letter, there is no Claim or
Order pending or, to Radio Unica's Knowledge, threatened, including
counterclaims and crossclaims, against Radio Unica or any Affiliate of Radio
Unica that seeks to restrain or prohibit or otherwise challenge the
consummation, legality or validity of the transactions contemplated hereby or
that would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect on Radio Unica or the Purchased Assets.
Section 5.7. COMPLIANCE WITH LAW. All approvals, permits and
licenses of Governmental Entities required for the Sellers to conduct the
Business as it is currently conducted have been obtained, except for any such
approvals, permits or licenses the absence of which would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
Radio Unica or the Purchased Assets. SCHEDULE 2.1(a) of the Sellers' Disclosure
Letter sets forth an accurate list of all Acquired Station Licenses. The Sellers
are currently conducting the Business in compliance with all applicable Laws,
except where the
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failure to comply would not, individually or in the aggregate, have a Material
Adverse Effect on Radio Unica or on the Purchased Assets.
Section 5.8. FCC LICENSES.
(a) SCHEDULE 2.1(a) of the Sellers' Disclosure Letter contains a true
and complete list of the FCC Licenses. Each Licensee is the authorized legal
holder of the FCC Licenses set forth opposite the name of such Licensee on
SCHEDULE 2.1(a). The FCC Licenses are in full force and effect, unimpaired by
any act or omission of the relevant Licensee or the relevant Operating Company.
The FCC Licenses are all of the licenses, permits or other authorizations from
the FCC necessary for the conduct of the Business in the manner and to the full
extent as the Business is currently conducted and there are no conditions upon
the FCC Licenses except those conditions stated on the face thereof or those
conditions that apply to radio broadcast licenses generally. No proceedings are
pending or threatened (other than proceedings applicable to the radio
broadcasting industry generally) nor do any facts exist which may result in the
revocation, modification, non-renewal or suspension of any of the FCC Licenses,
the denial of any pending applications related to the FCC Licenses, the issuance
of any cease and desist order related to the FCC Licenses, the imposition of any
administrative actions by the FCC with respect to the FCC Licenses or which may
affect the Purchaser's ability to operate the Acquired Stations in accordance
with the FCC Licenses and the existing rules, regulations and policies of the
FCC (the "FCC RULES").
(b) Except as disclosed on SCHEDULE 5.8(b)(i) of the Sellers'
Disclosure Letter, each Acquired Station and its transmission facilities are
operating in material compliance with the FCC Licenses and the FCC Rules. Each
Licensee has filed with the FCC all material reports or applications (including
payment of any fee, fine or forfeiture due to the FCC as of the date hereof)
with respect to the FCC Licenses and the relevant Acquired Station. Each Seller
has complied in all material respects with applicable FCC Rules pertaining to
(i) the relevant Acquired Station's public file, and (ii) the requirements to
maintain logs and other records. All such files, logs, and records required by
the FCC are kept in good order and maintained at each Acquired Station. Except
as disclosed on SCHEDULE 5.8(b)(ii) of the Sellers' Disclosure Letter, each
Acquired Station's tower and transmitting facilities are in good repair and
structurally sound, are currently maintained and shall be maintained in
accordance with good engineering practice and all applicable FCC Rules, have
correct monitoring points, and possess all necessary lighting and markings to
comply with applicable FCC Rules. Except as disclosed on SCHEDULE 5.8(b)(iii) of
the Sellers' Disclosure Letter, if required, the transmission towers are duly
registered with the FCC and Federal Aviation Administration. Except as disclosed
on SCHEDULE 5.8(b)(iv) of the Sellers' Disclosure Letter, each Acquired Station
is currently transmitting its broadcast signal, and shall on the Closing Date be
transmitting its broadcast signal, at no less than ninety percent (90%) of its
maximum authorized power.
Section 5.9. CONTRACTS.
(a) As of the date hereof, neither Radio Unica nor any Seller is a
party to any agreement (other than this Agreement) for the acquisition, sale or
lease of any of the Purchased Assets (by merger, purchase, syndication or sale
of assets or otherwise).
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(b) The Sellers have made available to the Purchaser a correct and
complete copy of each Contract set forth on SCHEDULE 2.5(a). Except as set forth
on SCHEDULE 5.9(b) of the Sellers' Disclosure Letter, each Assigned Contract is
a legal, valid and binding agreement of the applicable Seller party thereto and,
to the Knowledge of Radio Unica, of each other party thereto, enforceable in
accordance with its terms subject to applicable bankruptcy, reorganization,
insolvency, moratorium (whether general or specific), fraudulent conveyance and
similar Laws affecting the enforcement of creditors' rights generally, and
general principles of equity (regardless of whether such enforcement is sought
in a proceeding in equity or at law) and is in full force and effect in each
case with such exceptions that would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Radio Unica or
the Purchased Assets. Except as set forth on SCHEDULE 5.9(b) of the Sellers'
Disclosure Letter, neither the Seller party to such Assigned Contract nor, to
the Knowledge of Radio Unica, no other party to any Assigned Contract is in
default or breach of such Assigned Contract, except for any default or breach
that would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect on Radio Unica or the Purchased Assets.
Section 5.10. TAX MATTERS. Except as set forth on SCHEDULE 5.10 of
the Sellers' Disclosure Letter:
(a) Subject to the entry of the Confirmation Order, all material Tax
Returns with respect to the Purchased Assets required to be filed (the "SELLERS
TAX RETURNS") have been filed, and the information provided on the Sellers Tax
Returns is true, correct and complete in all material respects, and all Taxes
shown to be due on the Sellers Tax Returns have been paid in full, except to the
extent that a failure to file the Sellers Tax Returns, an inaccuracy in the
Sellers Tax Returns, or a failure to pay such Taxes would not reasonably be
expected to result in the Purchaser being liable for such Taxes and would not
reasonably be expected to give rise to a Lien on the Purchased Assets.
(b) Subject to the entry of the Confirmation Order, all material
Taxes due and owing with respect to the Purchased Assets that are not required
to be shown on a Tax Return have been paid in full except to the extent that a
failure to pay such Taxes would not reasonably be expected to result in the
Purchaser being liable for such Taxes and would not reasonably be expected to
give rise to a Lien on the Purchased Assets.
Section 5.11. INTELLECTUAL PROPERTY.
(a) There is no pending or, to the Knowledge of Radio Unica,
threatened IP Claim against any Seller (i) alleging Infringement of material
Acquired Intellectual Property rights of any Person or (ii) challenging any
Seller's ownership or use of, or the validity, enforceability or registrability
of, any material Acquired Intellectual Property, and, to the Knowledge of Radio
Unica, there is no reasonable basis for an IP Claim regarding any of the
foregoing.
(b) None of the Sellers has brought or threatened an IP Claim against
any Person (i) alleging Infringement of material Acquired Intellectual Property
rights or (ii) challenging any Person's ownership or use of, or the validity,
enforceability or registrability of, any Intellectual
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Property based upon the material Acquired Intellectual Property, and, to the
Knowledge of Radio Unica, there is no reasonable basis for an IP Claim regarding
any of the foregoing.
(c) The Sellers have full legal and equitable title to the Acquired
Intellectual Property, and the Sellers have not transferred to any third party,
by assignment, mortgage, security interest, license, or otherwise, any legal or
equitable right, title or interest in and to the Acquired Intellectual Property
or any portion thereof. The Acquired Intellectual Property includes all
Intellectual Property licenses and other rights that are necessary for the use
of any Software and technical and engineering data and information comprising
any part of the Purchased Assets.
(d) The Patents, registered Trademarks, and registered Copyrights set
forth on SCHEDULE 5.11 of the Sellers' Disclosure Letter constitute a complete
listing of all foreign or domestic Patents, registered Trademarks, and
registered Copyrights which are used, held for use, or useable by any of the
Sellers in the conduct of the Business.
Section 5.12. LABOR MATTERS; EMPLOYEE BENEFITS.
(a) No Seller is a party to or bound by any collective bargaining
agreement or other labor contract applicable to any employees of the Business,
nor has any Seller agreed to recognize any labor union or other collective
bargaining representative, nor has any union or other collective bargaining
representative been certified as the exclusive bargaining representative of any
employees of the Business. To the Knowledge of Radio Unica, there are no
organizational efforts currently being made or threatened by or on behalf of any
labor union or other collective bargaining representative with respect to
employees of the Business. There is no present or, to the Knowledge of Radio
Unica, threatened labor strike, slowdown, lock out, stoppage or other dispute
relating to the employees of the Business.
(b) Radio Unica has made available to the Purchaser true and correct
copies of each plan or arrangement (including each "employee benefit plan" as
defined in Section 3(3) of ERISA) maintained or contributed to by (i) Radio
Unica or any Seller or (ii) any entity which is treated as a "single employer"
with Radio Unica or any Seller under Section 414 of the Code (an "ERISA
AFFILIATE") and which provides benefits to any current or former employee of any
Seller employed in connection with the Business (collectively, "EMPLOYEE BENEFIT
PLANS"). Except as set forth on SCHEDULE 5.12(b) of the Sellers' Disclosure
Letter (which, with respect to employees, former employees and qualified
beneficiaries of Radio Unica of Chicago, Inc. and Radio Unica of Fresno, Inc.,
identifies those persons as such), no employee, former employee or qualified
beneficiary of Radio Unica, any Seller or any ERISA Affiliate is receiving
benefits under an Employee Benefit Plan pursuant to COBRA. All of the employees
of Radio Unica and its Subsidiaries are the subject of Client Services and
Co-Employment Agreements between Radio Unica or such Subsidiary and ADP
Totalsource, and, except as with respect to nineteen (19) employees of Radio
Unica of Chicago, Inc. and Radio Unica of Fresno, Inc., neither Radio Unica nor
any Seller maintains any "group health plan" (as defined by Section 5000(b) of
the Code).
(c) Except as could not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect on Radio Unica or the Purchased
Assets, with respect to each Employee Benefit Plan, (i) Radio Unica, each Seller
and each ERISA Affiliate, as
32
applicable, has performed all obligations required to be performed by them under
each Employee Benefit Plan, and none of Radio Unica, any Seller or any ERISA
Affiliate is in default under, or in violation of the terms of, any Employee
Benefit Plan; (ii) each Employee Benefit Plan has been established and
maintained in accordance with its terms and in compliance with all applicable
Laws, including ERISA and the Code, including the timely filing of all required
reports, documents and notices, where applicable, with the IRS and the
Department of Labor; and (iii) no Employee Benefit Plan is under audit or
investigation by the IRS, the Department of Labor or the Pension Benefit
Guaranty Corporation and, to the Knowledge of Radio Unica, no such audit or
investigation is pending or threatened and no reason exists that could
reasonably be expected to give rise to any such audit or investigation. Except
as may be required by COBRA, no Employee Benefit Plan is a group health plan
providing coverage to former employees following termination of employment.
Section 5.13. ENVIRONMENTAL AND HEALTH AND SAFETY MATTERS.
(a) Except as set forth in SCHEDULE 5.13(a) of the Sellers'
Disclosure Letter, the Purchased Assets, the Business, and the activities,
operations and assets of the Acquired Stations have been and are in compliance
in all material respects with all applicable Laws relating to: (i) protection,
preservation or cleanup of the environment or natural resources; (ii) the
manufacture, use, handling, storage, treatment, disposal or release of or
exposure to any chemical substance or toxic, hazardous or deleterious material,
waste or agent (hereinafter "HAZARDOUS SUBSTANCE"), including without limitation
petroleum or any fraction thereof, asbestos, and polychlorinated biphenyls; and
(iii) health and safety (all such laws and regulations, hereinafter "EHS LAWS").
(b) There has been no Claim or Order, citation or written notice of
violation that remains unresolved against any Seller or any Acquired Station,
relating to material noncompliance with, or material liabilities or material
obligations pursuant to, EHS Laws, and, to the Knowledge of Radio Unica, no such
matter has been threatened.
(c) No asbestos, polychlorinated biphenyls or underground storage
tanks are present at, in, on or under the Purchased Assets except in material
compliance with EHS Laws and the presence and use of Hazardous Substances at
such properties have been limited to those types and amounts typical of radio
broadcasting stations generally.
(d) Except as set forth in SCHEDULE 5.13(a) of the Sellers'
Disclosure Letter, there are no conditions or circumstances arising from or
relating to the Purchased Assets, the activities or operations of the Sellers
with respect to the Purchased Assets and the Business, including the presence,
release or disposal of any Hazardous Substance, whether on or off of the
Purchased Assets, that could result in material liabilities or material
obligations pursuant to EHS Laws.
(e) Radio Unica and the Sellers have provided to the Purchaser all
assessments, audits, investigations, and sampling or similar reports relating to
the environment, compliance with and liabilities pursuant to EHS Laws, or the
presence or release of any Hazardous Substances, to the extent relating to the
Purchased Assets or the activities or operations of Radio Unica or the Sellers
with respect to the Purchased Assets that are in the possession or control of
Radio Unica or the Sellers.
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Section 5.14. BROKERS AND FINDERS. Except as set forth in SCHEDULE
5.14 of the Sellers' Disclosure Letter, no broker, finder, consultant or
intermediary is entitled to a broker's, finder's or similar fee or commission in
connection with the transactions contemplated by this Agreement or upon the
consummation of the transaction contemplated hereby, or if the Closing does not
occur, except for such fees payable solely by Radio Unica or any of its
Affiliates.
Section 5.15. LIMITATION OF REPRESENTATIONS AND WARRANTIES. EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE V NEITHER RADIO
UNICA NOR ANY SELLER IS MAKING ANY OTHER REPRESENTATIONS OR WARRANTIES, WRITTEN
OR ORAL, STATUTORY, EXPRESS OR IMPLIED, CONCERNING THE PURCHASED ASSETS, THE
BUSINESS OR THE ASSETS OR LIABILITIES OF RADIO UNICA OR ANY SELLER. THE
PURCHASER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT
INCLUDING WITHOUT LIMITATION ARTICLE V, NEITHER RADIO UNICA NOR ANY SELLER HAS
MADE, AND EACH OF RADIO UNICA AND EACH SELLER HEREBY EXPRESSLY DISCLAIMS AND
NEGATES, AND THE PURCHASER HEREBY EXPRESSLY WAIVES, ANY REPRESENTATION OR
WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO,
AND THE PURCHASER HEREBY EXPRESSLY WAIVES AND RELINQUISHES ANY AND ALL RIGHTS,
CLAIMS AND CAUSES OF ACTION AGAINST RADIO UNICA AND EACH SELLER AND ITS
RESPECTIVE REPRESENTATIVES IN CONNECTION WITH, THE ACCURACY, COMPLETENESS OR
MATERIALITY OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR ORAL)
HERETOFORE FURNISHED TO THE PURCHASER AND ITS REPRESENTATIVES BY OR ON BEHALF OF
RADIO UNICA OR ANY SELLER. WITHOUT LIMITING THE FOREGOING, NEITHER RADIO UNICA
NOR ANY SELLER IS MAKING ANY REPRESENTATION OR WARRANTY TO THE PURCHASER WITH
RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST RELATING TO THE BUSINESS, THE
PURCHASED ASSETS OR THE ASSETS OR LIABILITIES OF ANY OF RADIO UNICA OR ANY
SELLER. WITH RESPECT TO ANY PROJECTION OR FORECAST DELIVERED ON BEHALF OF RADIO
UNICA OR ANY SELLER TO THE PURCHASER OR ITS REPRESENTATIVES, THE PURCHASER
ACKNOWLEDGES THAT (I) THERE ARE UNCERTAINTIES INHERENT IN ATTEMPTING TO MAKE
SUCH PROJECTIONS AND FORECASTS, (II) IT IS FAMILIAR WITH SUCH UNCERTAINTIES,
(III) IT IS TAKING FULL RESPONSIBILITY FOR MAKING ITS OWN EVALUATION OF THE
ADEQUACY AND ACCURACY OF ALL SUCH PROJECTIONS AND FORECASTS FURNISHED TO IT AND
(IV) IT SHALL HAVE NO CLAIM AGAINST ANY OF RADIO UNICA OR ANY SELLER OR ITS
RESPECTIVE AFFILIATES WITH RESPECT THERETO.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Except as disclosed in the written statement delivered by the
Purchaser to Radio Unica on the date hereof ("PURCHASER'S DISCLOSURE LETTER"),
the Purchaser hereby represents and warrants to Radio Unica and the Sellers as
set forth below. All references in this Article VI to
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any Schedule to this Agreement shall be deemed to refer to the relevant section
of the Purchaser's Disclosure Letter.
Section 6.1. ORGANIZATION, AUTHORITY AND QUALIFICATION. The
Purchaser (i) is duly organized, validly existing and in good standing under the
Laws of the State of New Jersey, (ii) has all requisite power and authority to
own, lease or operate the assets it now owns, leases or operates, and (iii) is
duly qualified or licensed to do business and, where applicable, is in good
standing in each jurisdiction in which the ownership or use of its assets or
conduct of its business requires it to be so qualified or licensed and in good
standing except where any such failure to be so qualified or licensed and in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect on the Purchaser.
Section 6.2. POWER AND AUTHORITY RELATIVE TO THIS AGREEMENT. The
Purchaser has the requisite power and authority to execute and deliver this
Agreement and any Related Document to which it is or will be party and to
perform the transactions contemplated hereby and thereby to be performed by it.
All corporate proceedings and corporate actions on the part of the Purchaser
required by Law or its organizational documents to authorize this Agreement and
the Related Documents to which it is or will be a party, the performance of the
obligations hereunder and thereunder to be performed by it and the consummation
of the transaction contemplated hereby and thereby have been duly taken, and no
other corporate proceedings or actions on the part of the Purchaser are
necessary. This Agreement is, and each of the Related Documents to which the
Purchaser is or will be a party will upon execution be, a valid and binding
agreement enforceable against the Purchaser in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
receivership, fraudulent conveyance or other similar laws now or hereafter in
effect limiting or affecting the rights of creditors generally and to general
equitable principles.
Section 6.3. NO VIOLATION; CONSENTS AND APPROVALS.
(a) Subject to receiving the consents or waivers referred to on
SCHEDULE 6.3(a) of Purchaser's Disclosure Letter and the consents referred to in
Section 6.3(b), the execution and delivery by the Purchaser of this Agreement
and each Related Document to which it is a party and the consummation of the
transactions contemplated hereby and thereby do not and will not (i) violate any
provision of the organizational documents of the Purchaser, (ii) conflict with,
require the consent of a third party under, violate, result in the breach of,
constitute a default under, or give rise to any right of acceleration,
cancellation or termination of any material right or obligation of the Purchaser
under any material agreement or other instrument to which the Purchaser is a
party or by which the Purchaser, or any of its properties or assets are bound,
(iii) violate any Order of any Governmental Entity to which the Purchaser is
bound or subject, (iv) subject to the entry of the Confirmation Order, violate
any applicable Law, or (v) except as provided for herein, result in the
imposition or creation of any Lien upon the Purchased Assets, other than, in the
case of clauses (i) through (v), any conflict, violation, breach, default,
requirement for consents, rights of acceleration, cancellation, termination or
Lien that would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect on the Purchaser.
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(b) Except as set forth on SCHEDULE 6.3(b) of Purchaser's Disclosure
Letter, no Order or permit issued by, or declaration or filing with, or
notification to, or waiver from any Governmental Entity is required on the part
of the Purchaser in connection with the execution and delivery of this Agreement
and each Related Document to which it is or will be a party, or the compliance
or performance by the Purchaser with any provision contained therein, except for
any such requirements, the failure of which to be obtained or made would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect on the Purchaser.
Section 6.4. LITIGATION. No Claim is pending or, to the Knowledge of
the Purchaser, threatened against the Purchaser which seeks to delay or prevent
the consummation of the transactions contemplated by this Agreement or any
Related Document to which the Purchaser is a party, which would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Purchaser.
Section 6.5. BROKERS AND FINDERS. Except as set forth on SCHEDULE
6.5 of Purchaser's Disclosure Letter, no broker, finder, consultant or
intermediary is entitled to a broker's, finder's or similar fee or commission in
connection with the transactions contemplated by this Agreement or upon the
consummation of the transactions contemplated hereby, or if the Closing does not
occur, except for such fees or commissions payable solely by the Purchaser or
one of its Subsidiaries.
Section 6.6. FINANCING; SOLVENCY. The Purchaser has received a
commitment for debt financing, subject to the satisfaction of the terms and
conditions set forth in such commitment letter (the "EXISTING COMMITMENT
LETTER"), a copy of which letter has been provided to Radio Unica, which will,
if and when such debt financing is provided to the Purchaser pursuant to such
Existing Commitment Letter, provide the Purchaser sufficient immediately
available funds at the Closing to pay the Purchase Price and effect the
transactions contemplated hereby. Upon the consummation of the transactions
contemplated by this Agreement (including receipt of the Financing), (a) the
Purchaser will not be insolvent, (b) the Purchaser will not be left with
unreasonably small capital, (c) the Purchaser will not have incurred debts
beyond its ability to pay such debts as they mature, (d) the capital of the
Purchaser will not be impaired and (e) immediately following Closing, Purchaser
will have sufficient capital to continue the Business as a going concern (it
being understood that the Purchaser will have no obligation to continue all or
any portion of the Business as a going concern).
Section 6.7. QUALITY OF PURCHASED ASSETS. The Purchaser acknowledges
that it is purchasing the Purchased Assets "AS IS," "WHERE IS" and "WITH ALL
FAULTS" and the Purchaser has not relied on any representation or warranty of
Radio Unica, the Sellers or their representatives other than the representations
and warranties contained in Article V hereof.
Section 6.8. FCC MATTERS. The Purchaser is not aware of any facts or
circumstances that would be reasonably likely, individually or in the aggregate,
to disqualify the Purchaser under the FCC Rules from obtaining an assignment of
the FCC Licenses other than the FCC Multiple Ownership Rules to the extent
described in Section 8.8.
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ARTICLE VII
TAX MATTERS
Section 7.1. COOPERATION ON TAX MATTERS. The Parties shall cooperate
fully, as and to the extent reasonably requested by the other Parties, in
connection with any Proceeding in respect of Taxes or the filing of any Tax
Return. Such cooperation shall include the retention and (upon such other
Party's request) the provision of records and information reasonably relevant to
any such Proceeding or Tax Return and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. In furtherance of the foregoing, each Party shall
(a) retain all records that are relevant to the determination of Tax liabilities
pertinent to the Purchased Assets until the expiration of the applicable statute
of limitations, and such additional period as necessary for any Proceeding
relating to any proposed assessment, (b) abide by all record retention
agreements entered into with any Taxing Authority, (c) give the other Parties
reasonable written notice prior to destroying or discarding any such records
and, if such other Parties so request, allow such other Parties to take
possession of such records, (d) cooperate with each other in the conduct of any
Proceeding for any Tax purposes relating to the Purchased Assets and (e) execute
and deliver such documents as are reasonably necessary to carry out the intent
of this Agreement.
Section 7.2. PURCHASER RETURNS. The Purchaser shall file any Tax
Returns required to be filed with respect to real or personal property
constituting part of the Purchased Assets that are due after the Closing Date
for any Straddle Period (the "PURCHASER RETURNS") and all Tax periods beginning
on or after the Closing Date.
Section 7.3. CONTROL OF PROCEEDINGS. Any Proceeding related to the
Purchased Assets, which may reasonably be expected to result in Tax due from the
Purchaser or its Affiliates (including, for the avoidance of doubt, any
Proceeding relating to the Straddle Period that may reasonably be expected to
result in Tax due from the Purchaser or its Affiliates), shall be controlled by
the Purchaser. Radio Unica shall be kept reasonably informed with respect to any
such Proceeding that may reasonably be expected to result in Tax due from Radio
Unica or its Affiliates (including, for the avoidance of doubt, the Straddle
Period) and may jointly participate in the Proceeding at its own expense.
Section 7.4. TAX REFUNDS. Except as provided in Section 3.5(b),
Radio Unica shall pay to the Purchaser the amount of any Tax refund or Tax
credit with respect to the Purchased Assets that is received by Radio Unica or
its Affiliates that is attributable to (a) the portion of the Straddle Period
for which the Purchaser is responsible pursuant to Section 3.5 or (b) any Tax
period beginning after the Closing Date. Except as provided in Section 3.5(b),
the Purchaser shall pay to Radio Unica the amount of any Tax refund or Tax
credit with respect to the Purchased Assets that is received by the Purchaser or
its Affiliates that is attributable to (i) the portion of the Straddle Period
for which the Sellers are responsible pursuant to Section 3.5 or (ii) any Tax
period ending before the Closing Date. Any payments made pursuant to this
Section 7.4 shall be made within ten (10) days of receipt of the relevant Tax
refund or Tax credit.
Section 7.5. TRANSFER TAXES.
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(a) Notwithstanding anything herein to the contrary, to the extent
not exempt under section 1146(c) of the Bankruptcy Code or otherwise, Radio
Unica and the Sellers shall bear and be responsible for any transfer, stamp,
documentary and other similar Tax and recording fees which may be imposed or
assessed as a result of the Sellers' transfers of the Purchased Assets to the
Purchaser (all such items, "TRANSFER TAXES"). The Purchaser will use
commercially reasonable efforts and cooperate in good faith with the Sellers to
minimize Transfer Taxes, if any, including obtaining any certificate of
exemption or similar document in respect of any Transfer Taxes. To the extent
permitted by law, the Sellers shall prepare and file all Tax Returns with
respect to any Transfer Taxes. The Sellers shall promptly forward a copy of any
such filed Tax Returns to the Purchaser.
(b) Notwithstanding anything herein to the contrary, to the extent
not exempt under section 1146(c) of the Bankruptcy Code or otherwise, the
Purchaser shall bear and be responsible for any sales, use and other similar Tax
which may be imposed or assessed as a result of the Sellers' sale of the
Purchased Assets to the Purchaser (all such items, "SALES TAXES"). The Sellers
will use commercially reasonable efforts and cooperate in good faith with the
Purchaser to minimize Sales Taxes, if any, including obtaining any certificate
of exemption or similar document in respect of any Sales Taxes. To the extent
permitted by law, the Purchaser shall prepare and file all Tax Returns with
respect to any Sales Taxes. The Purchaser shall promptly forward a copy of any
such filed Tax Returns to the Sellers.
Section 7.6. TAX CLEARANCE CERTIFICATES. If requested by the
Purchaser, the Sellers shall use reasonable efforts to secure tax clearance
certificates as follows:
(a) The Sellers of the Purchased Assets located in Arizona shall each
present at the Closing a certificate issued by the Arizona Department of Revenue
pursuant to Sec. 42-1110, A.R.S., stating that no tax is due from such Sellers.
(b) The Sellers of the Purchased Assets located in California shall
each present at the Closing one of the following documents issued by the
California State Board of Equalization pursuant to California Revenue & Taxation
Code Section 6811: (i) a receipt showing that the Seller has paid any amount for
which the Seller was liable or (ii) a certificate stating that no amount is due.
(c) The Sellers of the Purchased Assets in Florida shall each present
at the Closing a receipt issued by the Florida Department of Revenue pursuant to
Sec. 212.10(1), F.S., showing that no taxes, interest, or penalties are due from
such Sellers.
(d) The Sellers of the Purchased Assets in Illinois shall each
provide a notice of bulk sale to the Illinois Department of Revenue at least
thirty (30) days prior to the Closing.
(e) The Sellers of the Purchased Assets in New Jersey shall cooperate
with the Purchaser in providing notification of the sale of the Purchased Assets
to the Director of the New Jersey Division of Taxation at least ten (10) days
prior to the Closing in compliance with Sec. 54:32B-22, N.J.R.S.
(f) The Sellers of the Purchased Assets in
New York shall cooperate
with the Purchasers in providing notification of the sale of the Purchased
Assets to the
New York
38
Commissioner of Taxation and Finance at least ten (10) days prior to the Closing
in compliance with Sec. 1141(c),
New York Tax Law.
(g) The Sellers of the Purchased Assets in Texas shall each present
at the Closing the following: (i) "certificates of no tax due" issued by the
Texas Comptroller of Public Accounts pursuant to Texas Tax Code Section
111.020(c) and (ii) Property Tax Certificates issued pursuant to Texas Tax Code
Section 31.08 by the tax collector for each taxing unit in which such Purchased
Assets are located.
ARTICLE VIII
CERTAIN COVENANTS AND AGREEMENTS
OF RADIO UNICA, THE SELLERS, PARENT AND THE PURCHASER
Section 8.1. RESTRUCTURING.
(a) The Restructuring Companies shall use their reasonable best
efforts to effectuate the Restructuring. In furtherance of and without limiting
the generality of the foregoing, the Restructuring Companies shall commence a
Bankruptcy Case no later than thirty (30) Business Days after the execution of
this Agreement, and within five (5) Business Days thereafter propose a
Bankruptcy Plan and related Disclosure Statement, with the Bankruptcy Court and
promptly seek to obtain the Confirmation Order with respect to the Bankruptcy
Plan and approval of the Break-Up Payment Order, or, if applicable, the Break-Up
Payment Claim Order. The Restructuring Companies shall provide the Purchaser a
reasonable opportunity to review and comment on the Bankruptcy Plan and the
Disclosure Statement prior to the filing thereof and shall reasonably consider
the Purchaser's comments thereon. The Restructuring Companies shall use their
reasonable best efforts to provide the Purchaser a reasonable opportunity to
review and comment on copies of all other material pleadings to be filed with
the Bankruptcy Court during the course of the Bankruptcy Case prior to the
filing thereof and shall reasonably consider the Purchaser's comments thereon.
The Purchaser shall reasonably cooperate with the Restructuring Companies'
efforts to effectuate the Restructuring.
(b) The Restructuring Companies shall use their reasonable best
efforts to cause the Bankruptcy Plan to be confirmed as promptly as practicable.
The Purchaser shall reasonably cooperate with the Restructuring Companies'
efforts to cause the confirmation of the Bankruptcy Plan.
(c) The Restructuring Companies shall propose the Bankruptcy Plan,
and (i) if this Agreement has been terminated prior to the commencement of the
Bankruptcy Case under circumstances in which the Purchaser is entitled to the
Break-Up Payment, within five (5) Business Days of the commencement of the
Bankruptcy Case, propose a motion in form and substance reasonably satisfactory
to the Purchaser seeking allowance as an Administrative Claim in the Bankruptcy
Case of the Purchaser's claim for payment of the Break-Up Payment (the "ALLOWED
BREAK-UP PAYMENT CLAIM"), together with all necessary supporting papers and a
proposed Break-Up Payment Claim Order, or (ii) if this Agreement remains in
force at the time of the commencement of the Bankruptcy Case, within five (5)
Business Days of the
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commencement of the Bankruptcy Case, propose a motion in form and substance
reasonably satisfactory to the Purchaser for approval of the Break-Up Payment as
an administrative expense in the Bankruptcy Case, together with all necessary
supporting papers and a proposed Break-Up Payment Order.
(d) The Restructuring Companies shall distribute a copy of the
Confirmation Order to each of their creditors, including but not limited to
Taxing Authorities, and shall use their reasonable best efforts to provide
reasonable notice prior to the confirmation hearing of the key terms of the
Restructuring Transaction in accordance with the Bankruptcy Code and the
Bankruptcy Rules to all necessary parties, including but not limited to Taxing
Authorities and all counterparties to Contracts to which any of the
Restructuring Parties are party.
(e) Except as otherwise provided in this Agreement, neither Radio
Unica nor any Affiliate thereof shall take any action the effect of which would
be, or fail to take any action the effect of which failure to act would be, to
(i) prevent or materially impede the vesting, upon the Closing Date, of the
Purchased Assets in the Purchaser (or any Designee) free and clear of all claims
(as defined under the Bankruptcy Code), interests and Liens other than Permitted
Liens to the extent such Permitted Liens cannot be removed by operation of
sections 105, 363(f) or 1141 of the Bankruptcy Code, or (ii) result in the
reversal, voiding, modification or staying of the Break-Up Payment Order, the
Break-Up Payment Claim Order or the Confirmation Order.
Section 8.2. NO SOLICITATION OF ALTERNATIVE TRANSACTIONS.
(a) Except as set forth in this Section 8.2, neither Radio Unica nor
any Affiliates of Radio Unica shall (and Radio Unica and the Sellers shall cause
their Affiliates and use their reasonable best efforts to cause their and their
Affiliates' respective stockholders, officers, directors, employees, financial
advisors, investment bankers, attorneys, accountants or other representatives or
agents (collectively, "REPRESENTATIVES") not to, directly or indirectly, (i)
solicit, initiate, seek, assist or encourage the submission of any proposal for
an Alternative Transaction, or (ii) except as determined by the Board of
Directors in good faith to be necessary or advisable to satisfy the fiduciary
duties of the Board of Directors under applicable Law, after consultation with
outside legal counsel and financial advisors, in response to any bona fide
written proposal for an Alternative Transaction which did not result from a
breach of Section 8.2(a)(i), participate in any discussions or negotiations
regarding, or furnish to any Person, any information (PROVIDED that, prior to
furnishing such information, Radio Unica enters into a customary confidentiality
agreement on terms no less favorable to Radio Unica than those contained in the
Confidentiality Agreement) with respect to, or otherwise cooperate in any way
with respect to, any bona fide written proposal for an Alternative Transaction.
Radio Unica and the Sellers shall, and shall direct or cause their
Representatives to, immediately cease and cause to be terminated any discussions
or negotiations with any Persons that may be ongoing with respect to any
Alternative Transaction.
(b) The Board of Directors shall not (i) withhold, withdraw, amend,
change or modify, or publicly propose to withhold, withdraw, amend, change or
modify, in a manner adverse to the Purchaser, the approval or recommendation by
the Board of Directors of this Agreement, (ii) approve or recommend, or publicly
propose to approve or recommend, any Alternative Transaction or (iii) cause or
permit Radio Unica or any Affiliate of Radio Unica to
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enter into any letter of intent or any agreement, contract or commitment with
respect to any Alternative Transaction ("ALTERNATIVE AGREEMENT") or seek
Bankruptcy Court approval of an Alternative Agreement or Alternative
Transaction; PROVIDED, HOWEVER, the Board of Directors may take any of the
actions referred to above in this Section 8.2(b) with regard to a Superior
Proposal in the event that the Board of Directors determines in good faith that
such action is necessary or advisable to satisfy its fiduciary duties under
applicable Law, after consultation with outside legal counsel and financial
advisors; PROVIDED that, prior to or contemporaneous with taking any action
referred to in clause (iii) above with regard to an Alternative Transaction,
Radio Unica has provided the notice required by the last sentence of
subparagraph (c) below and the Board of Directors shall cause Radio Unica to
terminate this Agreement pursuant to Section 10.1(f) hereof.
(c) Radio Unica shall, within twenty-four (24) hours of receipt
thereof, advise the Purchaser of (i) any proposal relating to an Alternative
Transaction or written request for information with respect to any Alternative
Transaction, the material terms and conditions of such proposed Alternative
Transaction or request and the identity of the Person proposing such Alternative
Transaction or request for information and (ii) any changes in any such proposal
relating to an Alternative Transaction or request for information. Radio Unica
shall provide the Purchaser with at least three (3) Business Days written notice
prior to Radio Unica or any of the Sellers entering into any Alternative
Agreement or exercising any right to terminate this Agreement pursuant to
Section 10.1(f) hereof, together with a copy of the Alternative Agreement.
(d) As used herein, (i) "ALTERNATIVE TRANSACTION" shall mean any
transaction with any Person other than the Purchaser or any Affiliate of the
Purchaser relating to the direct or indirect sale, transfer or other disposition
of any material portion of the Purchased Assets or any Acquired Station, or
fifty percent (50%) or more of the equity securities of the Sellers or Radio
Unica (by means of sale, merger consolidation, liquidation, exchange or other
business combination) and (ii) "SUPERIOR PROPOSAL" shall mean a bona fide,
written proposal by a third party for an Alternative Transaction with terms that
the Board of Directors determines in good faith (after receiving advice of Radio
Unica's outside financial adviser), taking into account all relevant aspects of
the proposal and the Person making the proposal, (x) would, if consummated,
result in a transaction that is more favorable to Radio Unica's stakeholders
than the transactions contemplated by this Agreement, and (y) are reasonably
capable of being completed.
Section 8.3. OTHER ASSETS AND AGREEMENTS. Upon the discovery by any
Seller or any of its Affiliates of any item included within the definition of
Purchased Assets but not transferred, conveyed or assigned to the Purchaser or
any Designee, such Seller shall, and shall cause its Affiliates to, deliver
written notice to the Purchaser of the existence and non-transfer,
non-conveyance or non-assumption of such item and provide the Purchaser with all
the information about and with access to such item as the Purchaser may
reasonably request, and, if requested by the Purchaser, transfer, convey or
assign to the Purchaser or its Designee (as specified by the Purchaser) such
item, subject to applicable Law and the terms of this Agreement. For the
avoidance of doubt, the provisions of this Section 8.3 shall survive the
Closing.
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Section 8.4. ADDITIONAL MATTERS; FURTHER ASSURANCES; RELEASES OF
LIENS; RECEIVABLES.
(a) To the extent that, under applicable Law, any Assigned Contract
(or any Seller's rights thereunder) may not be assigned to the Purchaser or its
Designee or transferred without the consent of a third party and such consent
has not been obtained, this Agreement shall not constitute an agreement to
assign or transfer such Assigned Contract if an attempted assignment or transfer
would constitute a breach thereof or be unlawful, and the appropriate Seller
shall:
(i) use its commercially reasonable efforts to procure
such consent and an assignment or a novation of such Assigned Contract;
(ii) if it is unable to procure such consent and
assignment or novation of such Assigned Contract, use its commercially
reasonable efforts to establish a reasonable arrangement designed to
provide the benefits and burdens of such Assigned Contract to the Purchaser
or its Designee, including by sublicense, sublease, subcontract, escrow or
similar arrangement at no additional charge or obligation to the Purchaser
or any of its Affiliates (including any Designee); and
(iii) remit any rents, revenues, security deposits or any
other dollar amounts, notices or documents received by any Seller in
connection with such Assigned Contract to the Purchaser or its Designee
within five (5) Business Days of its receipt thereof, PROVIDED that the
Purchaser or such Designee to whom such Contract was to be assigned shall
be responsible for all obligations arising under such Assigned Contract
after the Closing Date.
(b) Radio Unica shall use its reasonable efforts to obtain releases
evidencing the discharge and release of any Liens encumbering the Purchased
Assets that secure indebtedness for borrowed money, or any other obligations of
the Sellers, duly executed by the holders thereof in form and substance
reasonably acceptable to the Purchaser and Radio Unica.
(c) The Purchaser shall remit to Radio Unica any payments the
Purchaser, its Affiliates or its Designee receives, at any time after the
Closing Date at the Acquired Stations or otherwise, with respect to Radio
Unica's accounts receivable within twenty (20) Business Days of such Person's
receipt thereof.
(d) At any time after the Closing Date, each of Radio Unica, each
Seller and the Purchaser shall promptly execute, acknowledge and deliver any
other assurances or documents and take such other actions reasonably requested
by any other Party and necessary for Radio Unica, each Seller or the Purchaser,
as the case may be, to satisfy its obligations hereunder or obtain the benefits
contemplated hereby.
(e) For the avoidance of doubt, the provisions of this Section 8.4
shall survive the Closing.
Section 8.5. ACCESS AND INFORMATION
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(a) Radio Unica shall cause the Sellers and any other Affiliate of
Radio Unica to, and the Sellers shall, permit the Purchaser and its
representatives after the date of execution of this Agreement to have reasonable
access, during regular business hours and upon reasonable advance notice, to the
properties, officers and employees of Radio Unica and the Sellers (and the
Sellers shall use their commercially reasonable efforts to cause the Sellers'
outside independent accountants to be available to the Purchaser on the same
basis), and shall furnish, or cause to be furnished, to the Purchaser any
financial and operating data, Tax information, books and records, contracts and
documents and other information that is available with respect to the Sellers
and the Purchased Assets as the Purchaser shall from time to time reasonably
request (including any work papers of the Sellers' accountants); PROVIDED, that
the foregoing shall not require the Sellers to permit any inspection, or to
disclose any information, that in its reasonable judgment would result in the
disclosure of any Trade Secrets of third parties or violate the Sellers'
obligations with respect to confidentiality owed to third parties, but, to the
extent permitted by the terms thereof, the Sellers shall inform the Purchaser of
any materials and documents subject to such restrictions on disclosure and, to
the extent feasible, redact the restricted information to permit the disclosure
of such material and documents.
(b) Radio Unica shall provide the Purchaser with copies of any
filing, statement, document or other information or material Radio Unica or any
of its Subsidiaries files with, submits to, presents to, or otherwise makes
available to the Bankruptcy Court, the Office of the United States Trustee or
any official committee appointed in the Bankruptcy Cases on the same date such
filing, statement, document or other information or material is so made,
presented or submitted.
(c) Radio Unica shall promptly notify the Purchaser of any Material
Adverse Effect with respect to the Purchased Assets, which notice shall include
a detailed description of such Material Adverse Effect.
Section 8.6. CONFIDENTIALITY.
(a) All information provided or obtained pursuant to this Agreement
shall be held by the Purchaser in accordance with and subject to the terms of
the Confidentiality Agreement, dated as of March 25, 2003 (the "CONFIDENTIALITY
AGREEMENT"), between the Purchaser and Radio Unica, all of the terms of which
shall remain in full force and effect notwithstanding the execution and delivery
of this Agreement or the termination hereof; PROVIDED, HOWEVER, the Parties
shall be permitted to make disclosures of confidential information thereunder to
any Interested Party. In addition, the Parties agree that the terms and
conditions of the transactions contemplated hereby and information provided to
Purchaser in connection with the execution hereof shall be subject to the same
standard of confidentiality as set forth in the Confidentiality Agreement.
Notwithstanding the foregoing, the Parties acknowledge and understand that in
connection with seeking the approval of the Bankruptcy Plan, this Agreement
(together with the Exhibits and Schedules attached hereto including the Sellers'
Disclosure Letter and Purchaser's Disclosure Letter) will be filed with the
Bankruptcy Court and made publicly available, and, prior to the entry of a
Confirmation Order, disclosures relating to the transactions contemplated by
this Agreement will be made to each official committee appointed in connection
with the Bankruptcy Cases and to its advisors and representatives, and the
Parties agree that such filing and disclosure will be not be deemed to violate
any confidentiality obligations owing to any
43
Party, whether pursuant to this Agreement, the Confidentiality Agreement or
otherwise. This Section 8.6 shall not in any way limit the disclosure of
information by Radio Unica or the Sellers in connection with the administration
of the Bankruptcy Cases.
(b) Notwithstanding any provision of this Agreement or any other
agreements entered into in connection with this Agreement (including the
Confidentiality Agreement), the Parties and their Affiliates (and each employee,
representative, or other agent of the Parties and their Affiliates) may disclose
to any and all Persons, without limitation of any kind, the Tax treatment and
any facts that may be relevant to the Tax structure of the transactions
contemplated by this Agreement (the "TRANSACTION") beginning on the earlier of
(i) the date of the public announcement of discussions relating to the
Transaction, (ii) the date of public announcement of the Transaction, or (iii)
the date of this Agreement; PROVIDED, HOWEVER, that nothing in this Section
8.6(b) shall permit the Parties or their Affiliates (or any employee,
representative or other agent thereof) to disclose (y) any information that is
not necessary to understanding the Tax treatment and Tax structure of the
Transaction (including the identity of the Parties or their Affiliates or any
information that could lead another to determine the identity of the Parties or
their Affiliates) or (z) any information to the extent that such disclosure
could result in a violation of any federal or state securities Law.
Section 8.7. APPROPRIATE ACTIONS; REGISTRATIONS, FILINGS AND
CONSENTS.
(a) Subject to the terms and conditions of this Agreement, after the
date hereof each of the Parties (i) shall take, or cause to be taken, all
actions, and do, or cause to be done, all things reasonably necessary, proper or
advisable on its part under this Agreement, applicable Law or otherwise to
consummate and make effective the transactions contemplated by this Agreement as
soon as practicable; (ii) furnish the other Parties with copies of all documents
(except documents or portions thereof for which confidential treatment has been
requested or for which confidential treatment is provided by operation of Law)
and correspondence (A) prepared by or on behalf of it for submission to any
Governmental Entity and (B) received by or on behalf of it or its counsel from
any Governmental Entity, in each case in connection with the transactions
contemplated by this Agreement; and (iii) use its commercially reasonable
efforts to consult with and keep the other Parties informed as to the status of
such matters. Radio Unica, the Sellers and the Purchaser will cooperate and use
their respective commercially reasonable efforts to obtain, as promptly as
practicable, all consents, approvals, waivers and authorizations required by
Section 9.1 hereof; provided the Purchaser shall be entitled to direct any
proceedings or negotiations with any Governmental Entity relating to the matters
described in Section 8.7(c), provided that it shall afford Radio Unica and the
Sellers a reasonable opportunity to participate therein.
(b) The Purchaser will use its reasonable efforts to maintain the
commitment for financing set forth in the Existing Commitment Letter in
accordance with the terms thereof and, upon any occurrence of a Trigger Date, to
obtain and maintain a commitment (inclusive of the Existing Commitment Letter, a
"COMMITMENT LETTER") for debt financing of not less than $190 million on terms
that in all material respects are no less favorable to the Purchaser (and the
affiliated buyers contemplated thereby) than the terms of the Existing
Commitment Letter ("FINANCING").
44
(c) The Sellers and the Purchaser shall take all actions necessary to
file as soon as practicable after the approval by the Bankruptcy Court of the
Break-Up Payment Order (and in any event within ten (10) Business Days after the
date thereof) all notifications, filings and other documents required under the
HSR Act, and to respond as promptly as practicable to any inquiries or requests
received from the FTC, the Antitrust Division or any other Governmental Entity,
including for additional information or documentation. The Purchaser agrees to
take promptly all commercially reasonable steps necessary to avoid or eliminate
each and every impediment under any antitrust or competition law that may be
asserted by any Governmental Entity so as to enable the Parties to expeditiously
close the transactions contemplated by this Agreement; PROVIDED, that, except as
provided in Section 8.8(c), the Purchaser shall not be obligated to (i)
prosecute or defend any litigation against any Governmental Entity, (ii) divest
any assets or discontinue or modify any of its operations, or (iii) accept or
become subject to any condition or requirement in order to obtain approval of,
or avoid or eliminate an impediment to, the consummation of the transactions
contemplated by this Agreement, other than in the cases of clauses (ii) and
(iii) for such divestitures, discontinuances, modifications, conditions or
requirements as would not, individually or in the aggregate, have a material
adverse effect on the assets, business, financial condition or results of
operations of the Purchaser and its Subsidiaries taken as a whole. The Parties
agree that the filing fee required to be paid in connection with the filing
under the HSR Act shall be borne equally by Radio Unica and the Purchaser.
Section 8.8. FCC CONSENT AND APPLICATION.
(a) FCC CONSENT. The transactions contemplated hereby are expressly
conditioned on and subject to the prior consent and approval of the FCC to
assignment of the FCC Licenses from the Sellers to the Purchaser or its Designee
("FCC CONSENT") and the FCC Consent becoming a Final Order.
(b) FCC APPLICATION. Each Party shall use its reasonable best efforts
to prepare and execute its respective portion of an application for FCC Consent
("FCC APPLICATION") to assignment of the FCC Licenses from the appropriate
Seller to the Purchaser and/or its Designee within five (5) Business Days, and
in any event no later than ten (10) Business Days, after execution of this
Agreement, and each Seller shall promptly thereafter file the completed FCC
Application with the FCC with respect to its Acquired Station. The Parties shall
thereafter prosecute the FCC Application with all reasonable diligence and
otherwise use commercially reasonable efforts to obtain the grant of the FCC
Application as expeditiously as practicable; PROVIDED, HOWEVER, that, subject to
Section 8.8(c), the Purchaser shall have the right in its sole discretion to
make all decisions concerning any divestiture commitments necessary to comply
with the FCC's multiple ownership rules set forth at 47 C.F.R. Section 73.3555
as in effect on the Closing Date (the "FCC MULTIPLE OWNERSHIP RULES"); PROVIDED,
FURTHER, that the Purchaser shall regularly consult with Radio Unica during the
processes referred to in this Section 8.8 and consider in good faith the views
of Radio Unica with respect thereto; and PROVIDED, FURTHER, that, in connection
with the transactions contemplated by this Agreement, the Purchaser shall not
seek a waiver of Section 73.3555 of the FCC Rules, except for a temporary waiver
thereof for a period not to exceed six (6) months from the Closing Date for
divestitures required in order to obtain the FCC Consent; PROVIDED that the
foregoing sentence shall be subject to the provisions of subsection (c) below.
Failure to obtain any of the waivers set forth above shall not limit the
Purchaser's obligations pursuant to subsection (c) below.
45
(c) The Purchaser, Radio Unica and the Sellers each agree to take
promptly any and all steps necessary to avoid or eliminate each and every
impediment and obtain all consents or waivers under FCC Rules or any
communications or broadcast Law that may be validly required by the FCC, so as
to enable the Parties to close the transactions contemplated by this Agreement
as expeditiously as reasonably possible, including committing to or effecting,
by consent decree, hold separate orders, trust, or otherwise, the sale or
disposition of such of its assets or businesses as are required to be divested
in order to obtain the FCC Consent, or to avoid the entry of, or to effect the
dissolution of or vacate or lift, any Order that would otherwise have the effect
of preventing or materially delaying the consummation of the transactions
contemplated by this Agreement; PROVIDED, HOWEVER, neither the Purchaser nor any
of its Affiliates shall be required to divest any of its material assets or
accept any material limitation on any of its businesses other than (i) the
divestiture of one radio station serving the Los Angeles market and one radio
station serving the
New York market, in either case selected by the Purchaser in
its sole discretion or (ii) limitations on its operation of its broadcast assets
in the Los Angeles and
New York markets, and then in any case only to the extent
required to comply with the FCC Multiple Ownership Rules.
(d) If a Trigger Date occurs, the Purchaser shall have the right to
notify the FCC of such fact and take such action as may be required by
applicable Law as a result of such notice being provided to the FCC.
Section 8.9. CONDUCT OF BUSINESS. Except (A) as expressly
contemplated by this Agreement, the Related Documents or the transactions
contemplated herein or therein, (B) as set forth in SCHEDULE 8.9 of the Sellers'
Disclosure Letter or (C) with the prior written consent of the Purchaser (which
consent shall not be unreasonably withheld, conditioned or delayed, except with
respect to matters covered by Section 8.9(b)(i) which consent may be withheld in
the Purchaser's sole discretion), the Sellers agree that, between the date of
this Agreement and the Closing Date:
(a) the Sellers shall and shall cause each of their Subsidiaries to
operate and maintain the Purchased Assets in the ordinary course consistent with
past practice; and
(b) the Sellers shall not, and shall not permit any of their
Subsidiaries to:
(i) sell, lease, transfer, grant a participation or
security interest in, mortgage, pledge, assign, or otherwise encumber or
subject to a Lien any of the Purchased Assets, except for (A) sales or
other dispositions of Purchased Assets that are replaced at the Seller's
sole cost and expense with like assets of comparable utility and value
prior to the Closing and (B) sales or other dispositions of Purchased
Assets, in the aggregate, having a value not in excess of $50,000;
(ii) enter into any Contract related to the Business or
any of the Purchased Assets involving more than $25,000 individually or any
Contracts involving $125,000 in the aggregate, except for any Contract that
has a term that expires within five (5) months of the date of this
Agreement;
46
(iii) cancel, terminate, amend or modify in any material
respect any existing Contract relating to the Business or any Assigned
Contract or exercise any material right with respect thereto (including the
exercise of any renewal option, right of first refusal or similar
preemption right);
(iv) fail to preserve Purchased Assets or deploy
maintenance capital in the ordinary course;
(v) grant, promise or otherwise agree to extend to any
customer or prospective customer of the Business any credit for products or
services to be provided after the date of this Agreement except as required
under a binding Contract existing on the date hereof, except for credits
granted in the ordinary course consistent with past practice and limited to
services provided in the calendar quarter in which such credit was granted;
(vi) take any action that jeopardizes the validity or
enforceability of or rights under any of the Acquired Station Licenses;
(vii) allow any insurance policy with respect to any of
the Purchased Assets to be amended or terminated without replacing such
policy with a policy providing substantially equivalent coverage insuring
comparable risks and issued by an insurance company financially comparable
to the prior insurance company; or
(viii) fail to operate the Business in material compliance
with applicable Laws including EHS Laws; or
(ix) commit to any of the foregoing.
Section 8.10. ENVIRONMENTAL AUDIT. The Purchaser may, at its own
expense, retain a qualified contractor to perform a Phase I environmental audit
and, if recommended by such contractor, a Phase II environmental audit with
respect to any Real Property, such audits to be completed within thirty (30)
days from the date of this Agreement. Each Seller shall provide such contractor
reasonably detailed information about and access to the relevant Real Property
for purposes of such audit(s).
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Section 8.11. TITLE INSURANCE AND SURVEY.
(a) Each Seller shall permit the Purchaser to obtain before the
Closing Date a commitment for title insurance (a "TITLE COMMITMENT") from a
title insurance company selected by the Purchaser (the "TITLE COMPANY") to
issue, at the Purchaser's expense, an owner's title insurance policy insuring
the fee simple interest of such Seller in and to the Owned Real Property and a
lessee's title insurance policy insuring the leasehold interest of such Seller
in and to the Leased Real Property (each, a "TITLE POLICY"). The Title
Commitments shall be in the amount authorized by the Purchaser, shall set forth
the status of the title of the Real Property, and shall show all Liens and all
other matters of record affecting the Real Property. The Title Policies shall be
issued on the Closing Date.
(b) Each Seller shall permit the Purchaser to obtain at its own
expense before the Closing Date a survey (a "SURVEY") of each parcel of Real
Property which shall: (i) be prepared by a registered land surveyor selected by
the Purchaser; (ii) be certified to the Title Company, the Purchaser (or any
Designee) and the Purchaser's lenders; and (iii) show with respect to the Real
Property: (A) the legal description of the Real Property (which shall be the
same as the Title Policy pertaining thereto); (B) all buildings, structures and
improvements thereon and all restrictions of record and other restrictions that
have been established by an applicable zoning or building code or ordinance and
all easements or rights of way across or serving the Real Property (including
any off-site easements affecting or appurtenant thereto); (C) no material
encroachments upon the Real Property or adjoining parcels by buildings,
structures or improvements; (D) access to such parcel from a public street; and
(E) a flood certification reasonably satisfactory to the Purchaser to the effect
that no portion of the Real Property is located within a flood hazard area.
(c) The Purchaser may at its election inform Radio Unica in writing
within thirty (30) days of the date of this Agreement with respect to which of
the Real Property it intends to obtain Title Commitments and Surveys. The
Purchaser's failure thereafter to use commercially reasonable efforts to obtain
any such Title Commitments and Surveys, or any election by Purchaser not to
obtain any such Title Commitments and Surveys, shall not be a breach of this
Agreement, but the condition to Closing in Section 9.3(g) with respect to such
Title Commitments and Surveys shall be deemed waived.
Section 8.12. EMPLOYEES. The Purchaser may but shall not be required
to offer employment effective as of the Closing to individuals employed in
respect of the Business (collectively, "BUSINESS EMPLOYEES"), on such terms as
the Purchaser may determine in its sole discretion; PROVIDED that the Purchaser
shall cause its hiring process to comply with applicable Laws pertaining to
labor and employment, including without limitation Title VII of the Civil Rights
Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans
with Disabilities Act, the Rehabilitation Act, ERISA, and comparable state and
local Laws. Radio Unica and the Sellers shall cooperate with the Purchaser's
reasonable requests for access to the Business Employees for purposes of making
any such employment offer and shall not otherwise interfere with the Purchaser's
efforts to hire Business Employees. Prior to the Closing, the Purchaser shall
provide the Sellers with a list of such employees to whom offers of employment
have been made or will be made by the Purchaser. Upon each such employee's
acceptance of such offer, the Sellers shall take such steps as may be necessary
to terminate any
48
employment relationship with such employee effective not later than the Closing
Date. The Sellers waive any claims against the Purchaser and any employee who
accepts the Purchaser's offer arising under any confidentiality agreement or
non-competition agreement between such person and the Sellers. The provisions of
this Section 8.12 shall neither create any rights in any employee to continued
employment with the Purchaser or any Designee for any specified period of time,
nor create any third-party beneficiary rights in any Business Employee, or any
other person (including any heir, beneficiary, executor, administrator, or
representative of any employee or any other person claiming through any such
employee or other person), with respect to such employee's or other person's
employment or any term or condition thereof.
Section 8.13. ADJUSTMENTS. The Purchase Price shall be reduced, as of
the Closing Date, by (i) the aggregate value of any Purchased Assets sold or
otherwise transferred to any Person other than the Purchaser or any Designee
pursuant to Section 8.9(b)(i)(B), (ii) the amount, if any, by which the
aggregate loss of Purchased Assets as a result of damage or destruction by fire
or other casualty, net of any related insurance proceeds received or to be
received pursuant to this Agreement in respect thereof, exceeds $1 million, and
(iii) the aggregate loss in value with respect to the Purchased Assets as the
result of any breach as of the Closing Date by Radio Unica or the Sellers of
their representations and warranties contained in (A) the second sentence of
Section 5.4(a), (B) the third sentence of Section 5.4(b)(i), (C) the second
sentence of Section 5.5 and (D) the second and third sentences of Section
5.8(a). Radio Unica shall notify the Purchaser promptly in writing of any such
sale or sales, damage or destruction or breach. If any such sale, damage or
destruction or breach would have a Material Adverse Effect on the Purchased
Assets, the Purchaser may terminate this Agreement, if applicable, pursuant to
Section 10.1(i). For the avoidance of doubt, the adjustments to the Purchase
Price that are required pursuant to this Section 8.13 shall not be deemed to
cure any breaches of covenants or failures of representations and warranties to
be true and correct for purposes of determining whether or not the conditions
precedent set forth in Section 9.3 have been satisfied.
Section 8.14. CURE COSTS. The Sellers shall be exclusively
responsible for the payment of all costs, expenses and obligations required to
cure any existing defaults under any of the Assigned Contracts (or any other
Contracts assumed by the Purchaser pursuant to Section 2.1(d)), or otherwise to
permit the assumption of the Assigned Contracts (or any other Contracts assumed
by the Purchaser pursuant to Section 2.1(d)) and their assignment to the
Purchaser or its Designee pursuant to Section 365 of the Bankruptcy Code.
ARTICLE IX
CONDITIONS TO CLOSING
Section 9.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLERS AND
THE PURCHASER. The respective obligations of each Party to effect the
transactions contemplated by this Agreement shall be subject to the satisfaction
at or prior to the Closing Date of the following conditions precedent:
49
(a) The Bankruptcy Plan shall have been approved by the Bankruptcy
Court pursuant to the Confirmation Order, and the Confirmation Order shall be in
form and substance reasonably satisfactory to Radio Unica and the Purchaser and
shall be a Final Order;
(b) (i) any applicable waiting period under the HSR Act, and any
extensions thereof obtained by request or other action of the FTC or the
Antitrust Division, shall have expired or been earlier terminated and (ii) no
condition or requirement unacceptable to the Purchaser in its reasonable opinion
shall be imposed on or required of the Purchaser or any of its Subsidiaries or
Affiliates as a result of or as a condition to the foregoing;
(c) no action, suit or proceeding (including any proceeding over
which the Bankruptcy Court has jurisdiction under 28 U.S.C. Section 157(b) and
(c)) shall be pending by any Governmental Entity to enjoin, restrain or prohibit
the transactions contemplated by this Agreement, or that would be reasonably
likely to prevent or make illegal the consummation of the transactions
contemplated by this Agreement; and
(d) there shall not be in effect any Law restraining, enjoining or
otherwise preventing consummation of the transactions contemplated by this
Agreement.
Section 9.2. CONDITIONS PRECEDENT TO OBLIGATION OF THE SELLERS.
The obligation of the Sellers to effect the transactions contemplated by this
Agreement shall be subject to the satisfaction or waiver in writing by Radio
Unica in its sole discretion at or prior to the Closing Date of the following
additional conditions precedent:
(a) the representations and warranties of the Purchaser contained in
this Agreement shall be true and correct as of the date hereof and as of the
Closing Date as if made on the Closing Date (except for representations and
warranties that relate to a specified date which shall be true and correct as of
such specified date) without giving effect to any qualifications regarding
materiality or Material Adverse Effect set forth therein with only such
exceptions as individually or in the aggregate do not constitute, and would not
be reasonably expected to constitute, a Material Adverse Effect on the
Purchaser;
(b) the Purchaser shall have performed in all material respects its
obligations under this Agreement required to be performed at or prior to the
Closing Date, including, without limitation, payment of the Adjusted Purchase
Price;
(c) the Sellers shall have received a certificate, in form and
substance to the reasonable satisfaction of the Sellers, dated as of the Closing
Date, executed on behalf of the Purchaser by an authorized officer of the
Purchaser, certifying in such detail as the Sellers may reasonably request, that
the conditions of Sections 9.2(a) and 9.2(b) have been fulfilled;
(d) the Purchaser shall have delivered to Radio Unica and the Sellers
the other deliverables required to be made by it pursuant to Section 4.2(b)
hereof; and
(e) the FCC Consent shall have been granted and shall be a Final
Order.
Section 9.3. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE
PURCHASER. The obligation of the Purchaser to effect the transactions
contemplated by this Agreement shall be
50
subject to the satisfaction or waiver in writing by the Purchaser in its sole
discretion at or prior to the Closing Date of the following additional
conditions precedent:
(a) the representations and warranties of Radio Unica contained in
this Agreement shall be true and correct as of the date hereof and as of the
Closing Date as if made on the Closing Date (except for representations and
warranties that relate to a specified date which shall be true and correct as of
such specified date) without giving effect to any qualifications regarding
materiality or Material Adverse Effect set forth therein with only such
exceptions as, individually or in the aggregate, do not constitute and would not
be reasonably expected to constitute a Material Adverse Effect on Radio Unica or
on the Purchased Assets;
(b) Radio Unica and each Seller shall have performed in all material
respects its covenants and obligations under this Agreement required to be
performed by it at or prior to the Closing Date;
(c) the Purchaser shall have received a certificate, in form and
substance to the reasonable satisfaction of the Purchaser, dated as of the
Closing Date, executed on behalf of Radio Unica and the Sellers by an authorized
executive officer of Radio Unica, certifying in such detail as the Purchaser may
reasonably request, that the conditions in Sections 9.3(a) and 9.3(b) have been
fulfilled;
(d) Radio Unica and the Sellers shall have delivered to the Purchaser
duly executed assignment and assumption agreements for the Assigned Contracts,
together with all third party consents required pursuant to applicable Law or
the terms thereof in order to effect such assignment to the Purchaser or its
Designees, in form and substance reasonably satisfactory to the Purchaser other
than assignments or consents the failure of which to obtain would not,
individually or in the aggregate, materially impair the ability of the Purchaser
to conduct the Business after the Closing;
(e) Radio Unica and the Sellers shall have delivered to the Purchaser
the other deliverables required to be made by them pursuant to Section 4.2(a)
hereof;
(f) all third party consents, waivers and approvals for the items
listed on SCHEDULE 9.3(f) shall have been received;
(g) the Purchaser has received the Title Policies and Surveys;
(h) no event or circumstance has occurred since the date of this
Agreement that constitutes or would reasonably be expected to constitute a
Material Adverse Effect on the Purchased Assets;
(i) no action, suit or proceeding (including any proceeding over
which the Bankruptcy Court has jurisdiction under 28 U.S.C. Section 157(b) and
(c)) shall be pending by any Governmental Entity that, if adversely determined,
would constitute or reasonably be expected to constitute a Material Adverse
Effect on the Purchased Assets;
(j) the Purchaser shall have received the proceeds of the Financing;
and
51
(k) the FCC Consent shall have been granted and shall be a Final
Order.
ARTICLE X
TERMINATION
Section 10.1. TERMINATION. Anything contained herein to the contrary
notwithstanding, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date:
(a) by mutual written consent of Radio Unica and the Purchaser;
(b) by the Purchaser, if the Closing does not occur on or before the
one-year anniversary of the date of this Agreement; PROVIDED, that such date
shall automatically be extended 180 days if, on the one-year anniversary, (i)
the conditions set forth in Section 9.2(e) and Section 9.3(k) have not been
satisfied or waived; (ii) the other conditions to the consummation of the
transactions contemplated hereby are then capable of being satisfied or have
been waived (other than the condition set forth in Section 9.3(j), but only to
the extent that such failure to be satisfied is due to the lack of a Final Order
with respect to the FCC Consent); and (iii) the FCC Consent required by Section
9.2(e) and Section 9.3(k) is being pursued with diligence and has not been
denied; PROVIDED FURTHER, that the right to terminate this Agreement pursuant to
this Section 10.1(b) shall not be available to the Purchaser if the Purchaser
shall have failed to perform, or failed to cause any of its Subsidiaries to
perform, any of its material obligations under this Agreement and such failure
is then continuing;
(c) by Radio Unica, if the Closing does not occur on or before the
one-year anniversary of the date of this Agreement; PROVIDED, that such date
shall automatically be extended 180 days if, on the one-year anniversary, (i)
the conditions set forth in Section 9.2(e) and Section 9.3(k) have not been
satisfied or waived; (ii) the other conditions to the consummation of the
transactions contemplated hereby are then capable of being satisfied or have
been waived (other than the condition set forth in Section 9.3(j), but only to
the extent that such failure to be satisfied is due to the lack of a Final Order
with respect to the FCC Consent); and (iii) the FCC Consent required by Section
9.2(e) and Section 9.3(k) is being pursued with diligence and has not been
denied; PROVIDED FURTHER, that the right to terminate this Agreement pursuant to
this Section 10.1(c) shall not be available to Radio Unica if Radio Unica or any
Seller shall have failed to perform any of its respective material obligations
under this Agreement and such failure is then continuing;
(d) by either Radio Unica, on the one hand, or the Purchaser on the
other hand, if consummation of the transactions contemplated by Article II would
violate any Final Order of any Governmental Entity having competent
jurisdiction;
(e) by the Purchaser, if (i) the Board of Directors withdraws or
changes its recommendation of this Agreement in a manner materially adverse to
the Purchaser, (ii) the Board of Directors recommends an Alternative
Transaction, (iii) Radio Unica or any of the Sellers enters into an Alternative
Agreement, (iv) the Bankruptcy Case is converted to a case
52
under Chapter 7 of the Bankruptcy Code or is dismissed or (v) a trustee is
appointed for any of the Sellers and such trustee rejects the transaction
contemplated by this Agreement;
(f) by Radio Unica, if the Board of Directors determines in good
faith, after consultation with outside legal counsel and financial advisors,
that entering into an Alternative Agreement with regard to a Superior Proposal
is necessary or advisable to satisfy the fiduciary duties of the Board of
Directors under applicable Law; PROVIDED that Radio Unica shall have the right
to terminate this Agreement pursuant to this subparagraph (f) only if it has
complied with the provisions of Section 8.2 hereof, and complies with the
requirements of Section 10.4 hereof relating to the payment (including the
timing of any payment) of the Break-Up Payment or Allowed Break-Up Payment
Claim, as the case may be, prior to termination of this Agreement pursuant to
this Section 10.1(f);
(g) by the Purchaser, if Radio Unica gives written notice to the
Purchaser that it is unable to obtain the consents required by Section 9.3(f);
(h) by Radio Unica, if there shall have been a breach of any covenant
or agreement on the part of the Purchaser set forth in this Agreement, or if any
representation or warranty of the Purchaser shall have been or become untrue, in
each case such that the conditions set forth in Section 9.2(a) or (b) would not
be satisfied, and any such breach has not been cured within thirty (30) days of
the date of written notice of such breach from Radio Unica, so long as Radio
Unica or any Seller is not then in breach of any of its obligations under this
Agreement;
(i) by the Purchaser, if there shall have been a breach of any
covenant or agreement on the part of Radio Unica or the Sellers set forth in
this Agreement, or if any representation or warranty of Radio Unica or the
Sellers shall have been or become untrue, in each case such that the conditions
set forth in Section 9.3(a) or (b) would not be satisfied, and any such breach
has not been cured within thirty (30) days, or five (5) days if the breach is in
respect of the covenants and agreements set forth in Section 8.1, of the date of
written notice of such breach from the Purchaser, so long as the Purchaser is
not then in breach of any of its obligations under this Agreement;
(j) by Radio Unica if (A) at any time after the date hereof the
Purchaser ceases to have in effect a Commitment Letter with respect to the
Financing (the "TRIGGER DATE"), (B) the Purchaser fails to obtain a replacement
Commitment Letter with respect to the Financing (a "FAILURE") by the later of
(x) the 90th day after such Trigger Date or (y) the date on which all other
conditions to the Closing are capable of being satisfied or have been waived and
(C) Radio Unica gives the Purchaser written notice of termination of this
Agreement pursuant to this Section 10.1(j) after such Failure occurs (but
termination under this Section 10.1(j) shall not be permitted with respect to
such Failure if, prior to the time Radio Unica provides written notice of
termination as aforesaid, the Purchaser had obtained a replacement Commitment
Letter with respect to the Financing); and
(k) by the Purchaser, if the Break-Up Payment Order is not entered by
the Bankruptcy Court within thirty (30) days following the commencement of the
Bankruptcy Case.
53
Section 10.2. NOTICE OF TERMINATION. In the event of any termination
pursuant to this Article X, written notice thereof setting forth the reasons
therefor shall promptly be given to the other Parties and the transactions
contemplated by this Agreement shall be terminated, without further action by
any Party.
Section 10.3. EFFECT OF TERMINATION. If validly terminated pursuant
to Section 10.1, this Agreement shall become wholly void and of no further force
and effect without any liability whatsoever to Radio Unica, the Sellers and the
Purchaser or any of its or their respective Subsidiaries, Affiliates, officers,
directors, employees, agents, advisors or other representatives, except that the
obligations of the Purchaser under the Confidentiality Agreement and the
obligations of the Parties under the Escrow Agreement, this Section 10.3 and
Sections 3.2, 8.6, 10.4, 10.5 and Article XII of this Agreement shall remain in
full force and effect.
Section 10.4. BREAK-UP PAYMENT.
(a) In the event that this Agreement is terminated by Radio Unica
pursuant to Section 10.1(f) or by the Purchaser pursuant to Section 10.1(e), the
Sellers agree to pay to the Purchaser the Break-Up Payment; PROVIDED, HOWEVER,
any such Break-Up Payment shall not be due and payable if (i) a Material Adverse
Effect on the Purchaser shall have occurred (other than as a direct result of a
material breach by Radio Unica or any of the Sellers of any provision of this
Agreement), or (ii) the Purchaser shall have breached any of its obligations,
representations or warranties contained in this Agreement in any material
respect and such breach has not been cured. The Purchaser shall have immediately
earned any such Break-Up Payment as of (i) the date Radio Unica terminates this
Agreement pursuant to Section 10.1(f) or (ii) the earliest date the Purchaser
could have terminated this Agreement under Section 10.1(e). Upon payment of the
Break-Up Payment as provided in Section 10.4(b) and the return of the Escrow
Deposit to the Purchaser, Radio Unica, each Seller and their respective
Affiliates shall be fully released and discharged from any liability under or
resulting from this Agreement and the Purchaser shall not have any other remedy
or cause of action under or relating to this Agreement or any applicable Law
including for reimbursement of expenses. The release and discharge from
liability referred to in the preceding sentence shall be self-executing, and
shall be effective immediately upon payment of the Break-Up Payment and the
return of the Escrow Deposit.
(b) Any Break-Up Payment payable to the Purchaser pursuant to Section
10.4(a) shall be paid:
(i) on or before the fifth Business Day after the
Purchaser terminates this Agreement pursuant to Section 10.1(e) unless the
Bankruptcy Court orders otherwise in the Break-Up Payment Order itself or
the Break-Up Payment Claim Order itself, as applicable; or
(ii) contemporaneously with and as a condition to the
effectiveness of any termination of this Agreement pursuant to Section
10.1(f).
(c) Radio Unica and the Sellers acknowledge and agree that (i) the
payment of the Break-Up Payment or, if applicable, the allowance of the Allowed
Break-Up Payment Claim and
54
the Restructuring Companies' agreement to request Administration Claim status
therefore is an integral part of the transactions contemplated by this
Agreement, (ii) in the absence of the Restructuring Companies' obligations to
make this payment and agreement to request such status, the Purchaser would not
have entered into this Agreement, (iii) the entry of the Purchaser into this
Agreement is necessary for preservation of the estate(s) of the Restructuring
Companies and beneficial to the Restructuring Companies, (iv) the Break-Up
Payment is reasonable in relation to the Purchaser's efforts and to the
magnitude of the transaction and (v) time is of the essence with respect to
entry of the Break-Up Payment Order.
Section 10.5. REMEDIES UPON TERMINATION.
(a) In the event Radio Unica terminates this Agreement pursuant to
Section 10.1(h), then Radio Unica and the Sellers shall be entitled to seek all
rights and remedies available to them at law or in equity; PROVIDED, that the
aggregate money damages payable to Radio Unica and the Sellers in such event
shall not exceed Thirty-Seven Million Five Hundred Thousand Dollars
($37,500,000).
(b) In the event the Purchaser terminates this Agreement pursuant to
Section 10.1(e), or Radio Unica terminates this Agreement pursuant to Section
10.1(f), then, as the Purchaser's sole and exclusive remedy, the Purchaser shall
receive an amount equal to the Break-Up Payment as liquidated damages in
accordance with Section 10.4.
(c) In the event the Purchaser terminates this Agreement pursuant to
Section 10.1(i), then the Purchaser shall be entitled to seek all rights and
remedies available to it at law or in equity; PROVIDED, that the aggregate money
damages payable to the Purchaser in such event shall not exceed Thirty-Seven
Million Five Hundred Thousand Dollars ($37,500,000) less the amount of a
Break-Up Payment, if any, received by the Purchaser pursuant to Section 10.4.
(d) For the avoidance of doubt, in the event payment is made under
Section 3.2(a)(iii), the provisions of Section 10.5(a) shall not be applicable.
ARTICLE XI
SURVIVAL AND INDEMNIFICATION
Section 11.1. SURVIVAL OF REPRESENTATIONS. The representations and
warranties in this Agreement shall terminate and will have no further force and
effect after the Closing Date. No covenants or agreements of the Parties
contained in this Agreement shall survive the Closing Date, except those
covenants that contemplate or may involve actions to be taken or obligations in
effect after the Closing Date.
Section 11.2. POST-CLOSING INDEMNIFICATION. To the extent provided in
this Article XI, from and after the Closing Date, Radio Unica and each Seller,
jointly and severally, shall reimburse the Purchaser for the failure to deliver
to the Purchaser or its Designee good and marketable title to, and possession
of, the Tangible Personal Property identified in SCHEDULE 2.1(b) of the Sellers'
Disclosure Letter free and clear of all claims (as defined under the Bankruptcy
Code), interests and Liens other than Permitted Liens to the extent such
Permitted
55
Liens cannot be removed by operation of sections 105, 363(f) or 1141 of the
Bankruptcy Code; PROVIDED, HOWEVER, that the Purchaser shall not be reimbursed
for any such failure that has been the subject of an adjustment to the Purchase
Price pursuant to Section 8.13 hereof (including any deductible contained
therein).
Section 11.3. INDEMNIFICATION PROCEDURES AND LIMITATIONS. Any
Indemnity Claim must be made by delivering written notice to Radio Unica,
specifying the Tangible Personal Property that is the subject of such Indemnity
Claim and the amount of reimbursement sought (which amount shall not be
determinative of the final amount of the Indemnity Claim), within thirty (30)
days after the Closing Date. The amount of any reimbursement pursuant to Section
11.2 shall not include any Taxes incurred by the Purchaser or its Affiliates as
a result of receiving a payment under this Article XI.
Section 11.4. HOLDBACK ESCROW. Any amounts due and owing to the
Purchaser pursuant to an Indemnity Claim shall be paid promptly out of the
Holdback Deposit in accordance with the Holdback Escrow Agreement.
Notwithstanding the termination of the Holdback Escrow Agreement or the full
disbursement and/or release of the Holdback Deposit, Radio Unica and the Sellers
shall remain liable for any Indemnity Claim as provided in this Article XI.
Section 11.5. EXCLUSIVE REMEDY. The indemnification provisions of
this Article XI shall be the sole and exclusive remedy of the Purchaser
following the Closing for any and all breaches or alleged breaches of any
representation, warranties, covenants or agreements of the parties or other
provision of this Agreement or the transactions contemplated hereby other than
for claims of, or causes of action arising from, fraud or any breach of a
covenant of Radio Unica or the Sellers that survives the Closing as provided in
Section 11.1. Under no circumstances shall any Party be entitled to special,
exemplary, punitive or consequential damages.
ARTICLE XII
MISCELLANEOUS
Section 12.1. AMENDMENT AND WAIVER. Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by Radio Unica, each of the Sellers and
the Purchaser, or in the case of a waiver, by the Party against whom the waiver
is to be effective. No failure or delay by any Party or Parties in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
Section 12.2. EXPENSES. Except as otherwise expressly provided in
this Agreement, including Section 10.4, whether or not the transactions
contemplated by this Agreement are consummated, the Parties shall bear their own
respective expenses (including, but not limited to, all compensation and
expenses of counsel, financial advisors, consultants, actuaries and independent
accountants) incurred in connection with this Agreement and the transactions
contemplated hereby.
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Section 12.3. PUBLIC DISCLOSURE. Each of the Parties agrees with the
other Parties that, except as may be required to comply with the requirements of
applicable Law or the requests, rules and regulations of each stock exchange
upon which the securities of one of the Parties or its Affiliates is listed, no
press release or similar public announcement or communication will be made or
caused to be made concerning the execution or performance of this Agreement
unless specifically approved in advance by all Parties; PROVIDED, HOWEVER, that
to the extent that any Party to this Agreement is required by applicable Law or
the requests, rules and regulations of any stock exchange upon which the
securities of one of the Parties or its Affiliates is listed to make such a
public disclosure, such public disclosure shall only be made after prior
consultation with the other Parties.
Section 12.4. SPECIFIC PERFORMANCE. The Parties recognize that if any
Party breaches this Agreement or refuses to perform under the provisions of this
Agreement, monetary damages alone would not be adequate to compensate the
non-breaching Party or Parties for their injuries. The non-breaching Party or
Parties shall therefore be entitled, in addition to any other remedies that may
be available, to obtain specific performance of the terms of this Agreement. If
any action is brought by the non-breaching Party or Parties to enforce this
Agreement, the Party in breach shall waive the defense that there is an adequate
remedy at law. No provision of this Section 12.4 shall be deemed to nullify any
of the limitations on money damages set forth in Section 10.5.
Section 12.5. ASSIGNMENT. This Agreement and the rights and
obligations of the Parties hereunder shall not be assigned, delegated or
otherwise transferred by Radio Unica, any Seller or the Purchaser; PROVIDED,
HOWEVER, that the Purchaser may assign its rights to purchase the Purchased
Assets or assume any Assigned Contract to any Designee, and the Purchaser may
assign this Agreement, and its rights hereunder, to any of its lenders, but in
no event will such assignment relieve the Purchaser of its obligations
hereunder.
Section 12.6. ENTIRE AGREEMENT. This Agreement (including all
Schedules and Exhibits hereto, the Sellers' Disclosure Letter and the
Purchasers' Disclosure Letter) contains the entire agreement among the Parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect to such matters, except for
the Confidentiality Agreement, which will remain in full force and effect for
the term provided for therein.
Section 12.7. FULFILLMENT OF OBLIGATIONS. Any obligation of any Party
to any other Party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate of such Party or Designee, shall be
deemed to have been performed, satisfied or fulfilled by such Party.
Section 12.8. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the Parties and
their respective successors and permitted assigns. Nothing in this Agreement,
express or implied, is intended to confer upon any Person other than Radio
Unica, each Seller and the Purchaser, or their successors or permitted assigns,
any rights or remedies under or by reason of this Agreement.
57
Section 12.9. SCHEDULES. The inclusion of any matter in any Schedule
to this Agreement shall be deemed to be an inclusion for all purposes of this
Agreement, to the extent that such disclosure is sufficient to identify the
section to which such disclosure is responsive, but inclusion therein shall not
be deemed to constitute an admission, or otherwise imply, that any such matter
is material or creates a measure for materiality for the purposes of this
Agreement. The disclosure of any particular fact or item in any Schedule,
Disclosure Letter shall not be deemed an admission as to whether the fact or
item is "material" or would constitute a "Material Adverse Effect."
Section 12.10. COUNTERPARTS. This Agreement and any amendments hereto
may be executed in one or more counterparts, each of which shall be deemed to be
an original by the Parties executing such counterpart, but all of which shall be
considered one and the same instrument.
Section 12.11. HEADINGS. The section and paragraph headings and table
of contents contained in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
Section 12.12. NOTICES. All notices and other communications hereunder
shall be deemed given if in writing and delivered personally, sent by facsimile
(confirm receipt), by registered or certified mail (return receipt requested) or
nationally recognized overnight courier to the Parties at the following
addresses (or at such other addresses as shall be specified by like notice):
(a) if to Radio Unica or any Seller:
Radio Unica Communications Corp.
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
58
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Purchaser:
Multicultural Radio Broadcasting Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice given by mail shall be effective when received.
Section 12.13. NO STRICT CONSTRUCTION. Notwithstanding the fact that
this Agreement has been drafted or prepared by one of the Parties, the Parties
confirm that both they and their respective counsel have reviewed, negotiated
and adopted this Agreement as the joint agreement and understanding of the
Parties, and the language used in this Agreement shall be deemed to be the
language chosen by the Parties to express their mutual intent, and no rule of
strict construction construing ambiguities against the draftsperson shall be
applied against any Person.
Section 12.14. GOVERNING LAW. Except to the extent the mandatory
provisions of the Bankruptcy Code apply, this Agreement shall be governed by,
and construed in accordance with, the Laws of the State of
New York applicable
to contracts made and to be performed entirely in such state without regard to
principles of conflicts or choice of laws or any other law that would make the
laws of any other jurisdiction other than the State of
New York applicable
hereto. The Parties agree that, except as provided herein or in the Escrow
Agreement, without limitation of any Party's right to appeal any order of the
Bankruptcy Court, upon the commencement of the Bankruptcy Case, (a) the
Bankruptcy Court shall retain exclusive
59
jurisdiction to enforce the terms of this Agreement and to decide any claims or
disputes which may arise or result from, or be connected with, this Agreement,
any breach or default hereunder, or the transactions contemplated herein; and
(b) any and all Claims relating to the foregoing shall be filed and maintained
only in the Bankruptcy Court, and the Parties hereby consent and submit to the
jurisdiction of the Bankruptcy Court.
Section 12.15. SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any Person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability.
Section 12.16. LIKE-KIND EXCHANGE. To facilitate the transfer of the
Purchased Assets as part of a like-kind exchange under Section 1031 of the Code,
the Purchaser may assign its rights under this Agreement, in whole or part, to a
"qualified intermediary" (within the meaning of Section 1.1031(k)-1(g)(4) of the
Treasury Regulations). In such case, the Purchaser will identify the qualified
intermediary to the Sellers in writing, and the Sellers shall convey the
Purchased Assets (or such portion thereof as is designated in writing by the
Purchaser or the qualified intermediary) as instructed by the qualified
intermediary at the Closing. The Sellers agree to take such actions, execute
such documents, and otherwise cooperate with the Purchaser and the qualified
intermediary as necessary or appropriate to consummate any such Section 1031
exchange; PROVIDED, HOWEVER, that such Section 1031 exchange shall not relieve
the Purchaser of its duties and obligations under this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS.]
60
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each
of the Parties as of the date first written above.
RADIO UNICA COMMUNICATIONS RADIO UNICA CORP.
CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Executive Vice President and
Title: Executive Vice President and Chief Financial Officer
Chief Financial Officer
MULTICULTURAL RADIO
BROADCASTING INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: President
OPERATING COMPANIES LICENSEES
RADIO UNICA OF CHICAGO, INC. RADIO UNICA OF CHICAGO LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF DALLAS, INC. RADIO UNICA OF DALLAS LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF FRESNO, INC. RADIO UNICA OF FRESNO LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
BLAYA, INC. RADIO UNICA OF HOUSTON LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF LOS ANGELES, INC. RADIO UNICA OF LOS ANGELES LICENSE
CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF MCALLEN, INC. RADIO UNICA OF MCALLEN LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF MIAMI, INC. RADIO UNICA OF MIAMI LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF NEW YORK, INC. RADIO UNICA OF NEW YORK LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF PHOENIX, INC. RADIO UNICA OF PHOENIX LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF SACRAMENTO, INC. RADIO UNICA OF SACRAMENTO LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF SAN ANTONIO, INC. RADIO UNICA OF SAN ANTONIO LICENSE
CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
RADIO UNICA OF SAN FRANCISCO, INC. RADIO UNICA OF SAN FRANCISCO LICENSE
CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
ORO SPANISH BROADCASTING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
RADIO UNICA OF TUCSON, INC. RADIO UNICA OF TUCSON LICENSE CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
EXHIBIT A
TO
ASSET PURCHASE AGREEMENT AMONG
RADIO UNICA
COMMUNICATIONS CORP., RADIO UNICA CORP.,
AND MULTICULTURAL RADIO BROADCASTING INC.
ACQUIRED STATIONS
[THIS PAGE INTENTIONALLY LEFT BLANK]
EXHIBIT A
ACQUIRED STATIONS
CALL SIGN LOCATION LICENSEE OPERATING COMPANY
----------------------------------------------------------------------------------------------------------------------------------
KAHZ Dallas/Ft. Worth, TX Radio Unica of Dallas License Radio Unica of Dallas, Inc.
Corp.
KATD Sacramento, CA Radio Unica of Sacramento License Radio Unica of Sacramento, Inc.
Corp.
KBLA Los Angeles, CA Radio Unica of Los Angeles Radio Unica of Los Angeles, Inc.
License Corp.
KIDR Phoenix, AZ Radio Unica of Phoenix License Radio Unica of Phoenix, Inc.
Corp.
KIQI San Francisco/San Jose, CA Radio Unica of San Francisco Radio Unica of San Francisco, Inc.
License Corp.
KQTL Tucson, AZ Radio Unica of Tucson License Radio Unica of Tucson, Inc.
Corp.
KVJY McAllen/Brownsville, TX Radio Unica of McAllen License Radio Unica of McAllen, Inc.
Corp.
KWRU Fresno, CA Radio Unica of Fresno License Radio Unica of Fresno, Inc.
Corp.
KZDC San Antonio, TX Radio Unica of San Antonio Radio Unica of San Antonio, Inc.
License Corp.
WNTD Chicago, IL Radio Unica of Chicago License Radio Unica of Chicago, Inc.
Corp.
WJDM New York, NY Radio Unica of New York License Radio Unica of New York, Inc.
Corp.
WWRU New York, NY Radio Unica of New York License Radio Unica of New York, Inc.
Corp.
WJCC Miami, FL Radio Unica of Miami License Corp. Radio Unica of Miami, Inc.
WNMA Miami, FL Radio Unica of Miami License Corp. Radio Unica of Miami, Inc.
KXYZ Houston, TX Radio Unica of Houston License Blaya, Inc.
Corp.
Exhibit B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made and entered into as
of October 3, 2003, by and among Deutsche Bank Trust Company Americas, a
national banking association, as escrow agent ("Escrow Agent"),
Radio Unica
Communications Corp., a Delaware corporation ("Radio Unica"), and
Multicultural Radio Broadcasting Inc., a New Jersey corporation ("Purchaser").
For purposes of this Agreement, Escrow Agent, Radio Unica and Purchaser are
hereinafter sometimes referred to individually as the "Party" and collectively
as the "Parties."
W I T N E S S E T H:
WHEREAS, concurrently herewith, Radio Unica and Purchaser, together
with Radio Unica Corp., certain of its Subsidiary Licensees and certain of its
Subsidiary Operating Companies, are entering into that certain
Asset Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), relating to
Radio Unica's sale and assignment, and Purchaser's purchase and assumption, of
the Purchased Assets and the Assumed Liabilities (the "Transaction");
WHEREAS, the Parties desire to execute this Agreement to specify and
clarify their rights and responsibilities with respect to the ▇▇▇▇▇▇▇ Money
Deposit;
WHEREAS, the Parties hereby acknowledge and agree that any
capitalized terms used in this Agreement that are not specifically defined in
this Agreement shall have the meanings given them in the Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the
mutual covenants and agreements contained in this Agreement, the Parties,
intending to be legally bound hereby, agree as follows:
ARTICLE 1
REPRESENTATIONS
Section 1.01. On the date hereof, Purchaser shall transfer to Escrow
Agent, by wire transfer in immediately available funds, from Purchaser's own
funds the ▇▇▇▇▇▇▇ Money Deposit which is a cash amount equal to Seven Million
Five Hundred Thousand Dollars ($7,500,000.00) (the "Escrow Funds"). The
Parties agree that the Escrow Funds are to be held in trust pursuant to the
terms of this Agreement by Escrow Agent until the Termination Date (as defined
in Section 7.07). Escrow Agent shall confirm in writing to the other Parties
the receipt by it of the Escrow Funds.
Section 1.02. Radio Unica and Purchaser hereby appoint Escrow Agent
to receive, hold, invest and disburse the Escrow Funds pursuant to this
Agreement; provided, however, Escrow Agent shall not be obligated to assume or
perform any obligation of Purchaser or Radio Unica under the Purchase
Agreement by reason of anything contained in this Agreement. Escrow Agent
hereby accepts such appointment and agrees to be bound by the terms and
conditions of this Agreement.
Section 1.03. Each of the Parties has authority to enter into this
Agreement, and has taken all actions necessary to authorize the execution of
this Agreement by the officers whose signatures are affixed hereto.
ARTICLE 2
ESCROW
Section 2.01. Escrow Agent shall establish a special escrow
designated as the "▇▇▇▇▇▇▇ Money Deposit Escrow" (the "Escrow"), shall keep
such Escrow separate and apart from all other funds and moneys held by it, and
shall administer such Escrow as provided in this Agreement.
Section 2.02. All Escrow Funds referred to in Section 1.01, along
with any income or interest earned thereon, shall be credited to the Escrow.
Until disbursed as set forth herein, all such income or interest shall
constitute additional Escrow Funds.
Section 2.03.
(a) Escrow Agent shall disburse Escrow Funds on deposit in the Escrow
to Purchaser, Radio Unica or both, as the case may be, upon receipt of :
(i) one or more fully executed Payment Request Forms in
substantially the form attached hereto as Exhibit A, executed by an authorized
officer of each of Purchaser and Radio Unica, and otherwise pursuant to the
terms hereof. Upon receipt of a Payment Request Form, the amounts specified
therein shall be promptly paid directly to the Person or Persons entitled to
payment as specified in the Payment Request Form; or
(ii) a copy of a Final Determination (as defined below)
establishing a Party's right to the Escrow Funds pursuant to Section 3.2(a) of
the Purchase Agreement. A "Final Determination" shall mean a final
non-appealable judgment of a court of competent jurisdiction and shall be
accompanied by an opinion of counsel for the presenting Party to the effect
that such judgment is a final, non-appealable judgment of a court of competent
jurisdiction.
(b) In the event of any disagreement between Radio Unica and
Purchaser resulting in adverse claims or demands being made in connection with
the Escrow Funds, Escrow Agent shall be entitled to retain the Escrow Funds
until Escrow Agent shall have received a Final Determination (accompanied by
the opinion of counsel referred to in Section 2.03(a)(ii)) directing delivery
of the Escrow Funds or a written agreement executed by Radio Unica and
Purchaser directing delivery of the Escrow Funds, in which event Escrow Agent
shall disburse the Escrow Funds in accordance with such Final Determination or
agreement.
(c) Escrow Agent shall take all actions called for in any Payment
Request Form, Final Determination, or written agreement delivered under
Section 2.03(a) or (b) within five (5) Business Days of the date such Payment
Request Form, Final Determination, or written agreement, as the case may be,
is received.
(d) Any Escrow Funds in the Escrow as of the Termination Date (as
defined below) shall be distributed to Purchaser within ten (10) Business Days
after the Termination Date unless otherwise agreed to in writing by Purchaser
and Radio Unica.
Section 2.04. In the event that the Escrow Funds are not sufficient
for full payment of any amount to which Radio Unica is entitled pursuant to
Section 2.03, Purchaser shall continue to be liable for the shortfall amount.
Section 2.05. Escrow Agent is acting hereunder as a depository only
and Escrow Agent shall only be responsible for the safekeeping and investment
of Escrow Funds held in the Escrow, and the disbursement thereof in accordance
with this Agreement, and shall not be responsible for the authenticity or
accuracy of such certifications or documents, the application of amounts paid
pursuant to such certifications by the Persons to which they are paid, or the
sufficiency of Escrow Funds credited to the Escrow to make the payments herein
required. This Agreement expressly sets forth the duties and obligations of
Escrow Agent and no implied duties or obligations shall be read into this
Agreement against Escrow Agent.
ARTICLE 3
MONEYS IN ESCROW; INVESTMENT
Section 3.01. Except to the extent that and until Radio Unica is or
becomes expressly entitled to a distribution of all or a portion of the Escrow
Funds pursuant to the terms of this Agreement, (i) Purchaser and Radio Unica
intend, and hereby inform Escrow Agent, that the Escrow shall constitute an
escrow account in which Radio Unica and its creditors have no legal or
equitable right, title or interest of any kind whatsoever, and (ii) all of the
Escrow Funds and any earnings thereon shall be the sole property of Purchaser.
Prior to any distribution of the Escrow Funds in accordance with the terms of
this Agreement, Purchaser shall be treated as the owner thereof and any
interest or dividends earned thereon for all purposes (including Tax
purposes).
Section 3.02. Escrow Funds held by Escrow Agent hereunder shall be
invested and reinvested by Escrow Agent in short term money market funds
investing in direct obligations of the United States of America or repurchase
agreements containing such obligations or, in direct obligations of the United
States of America having maturities of ninety-one (91) days or less, or
short-term securities issued or guaranteed by the United States government or
any agencies or instrumentalities thereof, in either case, as Escrow Agent is
directed by Purchaser in writing. Such investments shall be registered in the
name of Escrow Agent and held by Escrow Agent as part of the Escrow and,
together with earnings thereon, shall constitute further Escrow Funds
hereunder. Escrow Agent may make investments through its investment division
or short-term investment department. Escrow Agent shall sell and reduce to
cash a sufficient amount of investments of the Escrow Funds whenever the cash
balance therein is insufficient to pay the amounts required to be paid
therefrom. Escrow Agent shall, without further direction from any Person, sell
such investments as and when required to make any payments from the Escrow
required to be made pursuant to this Agreement. Unless Escrow Agent is guilty
of gross negligence, bad faith or willful misconduct with regard to its duties
hereunder, Escrow Agent shall not be responsible or liable for any loss
suffered in connection with any investment of moneys made by Escrow Agent in
accordance with this Article 3.
Section 3.03. Escrow Agent shall furnish to Radio Unica and Purchaser
reports accounting for all investments and interest and income therefrom. Such
accounting shall be furnished no less frequently than every month and upon
request of Radio Unica or Purchaser.
ARTICLE 4
ESCROW AGENT'S AUTHORITY; INDEMNIFICATION
Section 4.01. Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in
such a writing or instrument, and may assume that any Person purporting to
give any writing, notice, advice or instructions in connection with the
provisions hereof has been duly authorized to do so. Prior to or concurrent
with the delivery and execution of this Agreement each of Purchaser and Radio
Unica shall deliver an incumbency certificate to Escrow Agent designating the
person or persons of such Party from whom the Escrow may accept written
instructions. Each incumbency certificate shall contain a specimen signature
of each person so designated and each of Purchaser and Radio Unica may update
or revise its incumbency certificate from time to time. Escrow Agent shall not
be liable in any manner for the sufficiency or correctness as to form, manner
and execution, or validity of any instrument deposited with it, nor as to the
identity, authority or right of any Person executing the same; and its duties
hereunder shall be limited to those specifically provided herein.
Section 4.02. Unless Escrow Agent is guilty of gross negligence, bad
faith or willful misconduct with regard to its duties hereunder, Purchaser and
Radio Unica hereby agree, jointly and severally, to indemnify Escrow Agent and
hold it harmless from any and all claims, liabilities, losses, actions, suits
or proceedings at law or in equity, or any other expense, fees or charges of
any character or nature, which it may incur or with which it may be threatened
by reason of its acting as Escrow Agent under this Agreement; and in
connection therewith, to indemnify Escrow Agent against any and all expenses,
including reasonable attorneys' fees and the cost of defending any action,
suit or proceeding or resisting any claim. Escrow Agent shall be vested with a
lien on all property deposited hereunder for indemnification, for reasonable
attorneys' fees, court costs, for any suit, interpleader or otherwise, or any
other expenses, fees or charges of any character or nature, which may be
incurred by Escrow Agent by reason of disputes arising between Purchaser and
Radio Unica as to the correct interpretation of the Purchase Agreement or this
Agreement and instructions given to Escrow Agent hereunder, or otherwise, with
the right of Escrow Agent, regardless of the instructions aforesaid, to hold
the said property until and unless said additional expenses, fees and charges
shall be fully paid. The foregoing indemnities in this Section 4.02 shall
survive the resignation or substitution of Escrow Agent or the Termination
Date.
Section 4.03. If Purchaser and Radio Unica shall be in disagreement
about the interpretation of the Purchase Agreement or this Agreement, or about
the rights and obligations, or the propriety of any action contemplated by
Escrow Agent hereunder, Escrow Agent may, but shall not be required to, file
an appropriate civil action to resolve the disagreement. Escrow Agent shall be
indemnified, jointly and severally, by Purchaser and Radio Unica for all
costs, including reasonable attorneys' fees, in connection with such civil
action, and shall be fully protected in suspending all or part of its
activities under this Agreement until a final judgment, without any further
right of appeal, in such action is received.
Section 4.04. Escrow Agent shall not be liable for any mistakes of
facts or errors of judgment, or for any acts or omissions of any kind, unless
caused by its gross negligence, bad faith or willful misconduct.
Section 4.05. Escrow Agent may consult with legal counsel of its own
choosing, at the joint expense of Purchaser and Radio Unica, as to any matter
relating to this Escrow Agreement, and Escrow Agent shall not incur any
liability in acting in good faith in accordance with any advice from such
counsel. Section 4.06. Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of Escrow Agent
(including but not limited to any act or provision of any present or future
law or regulation or governmental authority, any act of God or war, civil
unrest, local or national disturbance or disaster, any act of terrorism, or
the unavailability of the Federal Reserve Bank wire or facsimile or other wire
or communication facility).
Section 4.07. Escrow Agent shall not be under any duty to give the
Escrow Funds held by it hereunder any greater degree of care than it gives its
own similar property and shall not be required to invest any funds held
hereunder except as directed in this Escrow Agreement. Uninvested funds held
hereunder shall not earn or accrue interest.
Section 4.08. In the event of any ambiguity or uncertainty hereunder
or in any notice, instruction or other communication received by Escrow Agent
hereunder, Escrow Agent may, in its sole discretion, refrain from taking any
action other than to retain possession of the Escrow Funds, unless Escrow
Agent receives written instructions signed by each of Purchaser and Radio
Unica, which eliminates such ambiguity or uncertainty.
Section 4.09. In the event of any dispute between or conflicting
claims among the Purchaser and Radio Unica and any other Person with respect
to any Escrow Funds, Escrow Agent shall be entitled, in its sole discretion,
to refuse to comply with any and all claims, demands or instructions with
respect to such Escrow Funds so long as such dispute or conflict shall
continue, and Escrow Agent shall not be or become liable in any way to
Purchaser or Radio Unica for failure or refusal to comply with such
conflicting claims, demands or instructions. Escrow Agent shall be entitled to
refuse to act until, in its sole discretion, either (i) such conflicting or
adverse claims or demands shall have been determined by a final order,
judgment or decree of a court of competent jurisdiction, which order, judgment
or decree is not subject to appeal, or settled by agreement between the
conflicting parties as evidenced in a writing satisfactory to Escrow Agent or
(ii) Escrow Agent shall have received security or an indemnity satisfactory to
it sufficient to hold it harmless from and against any and all losses which it
may incur by reason of so acting. Any court order, judgment or decree shall be
accompanied by a legal opinion by counsel for the presenting party,
satisfactory to Escrow Agent, to the effect that said order, judgment or
decree represents a final adjudication of the rights of the parties by a court
of competent jurisdiction, and that the time for appeal from such order,
judgment or decree has expired without an appeal having been filed with such
court. Escrow Agent shall act on such court order and legal opinions without
further question. Escrow Agent may, in addition, elect, in its sole
discretion, to commence an interpleader action or seek other judicial relief
or orders as it may deem, in its sole discretion, necessary. The costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with such proceeding shall be paid by, and shall be deemed a joint
and several obligation of, Purchaser and Radio Unica.
Section 4.10. No printed or other material in any language, including
prospectuses, notices, reports, and promotional material, which mentions
"Bankers Trust Company", "Deutsche Bank Trust Company Americas" or "Deutsche
Bank AG" or any of their respective affiliates by name or the rights, powers,
or duties of Escrow Agent under this Escrow Agreement, shall be issued by any
other Party, or on such Party's behalf, without the prior written consent of
Escrow Agent, provided that the foregoing shall not preclude the filing and
use of this Agreement or any document referring to this Agreement with or by
any court or governmental authority.
ARTICLE 5
ESCROW AGENT'S COMPENSATION
Section 5.01. As partial consideration of Radio Unica's entering into
this Agreement, Purchaser hereby agrees to be solely responsible for and pay
Escrow Agent its annual fee for the services to be rendered hereunder as
provided in Exhibit B hereto. Any fees due to Escrow Agent, including
investment fees or other investment-related charges, may be deducted by Escrow
Agent from the investment earnings on the Escrow if Escrow Agent provides
Purchaser and Radio Unica with a listing of such fees in reasonable detail.
Any investment fees or investment-related charges in excess of investment
earnings will be paid by Purchaser.
ARTICLE 6
CHANGE OF ESCROW AGENT
Section 6.01. A national banking association located in the United
States of America or a state bank or trust company organized under the laws of
a state of the United States of America, qualified as a depository of public
funds, may be substituted to act as Escrow Agent under this Agreement upon the
agreement of Purchaser and Radio Unica. Such substitution shall not be deemed
to affect the rights or obligations of the Parties. Upon any such
substitution, Escrow Agent agrees to assign to such substitute Escrow Agent
its rights and obligations under this Agreement.
Section 6.02. Escrow Agent or any successor may at any time resign by
giving notice by registered or certified mail to Purchaser and Radio Unica of
its intention to resign and of the proposed date of resignation, which shall
be a date not less than thirty (30) days after such notice is deposited in the
United States mail with postage fully prepaid, unless an earlier resignation
date and the appointment of a successor Escrow Agent shall have been or are
approved by Purchaser and Radio Unica. If Purchaser and Radio Unica are unable
to agree upon a successor escrow agent within thirty (30) days after such
notice, Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent or for other appropriate relief.
Section 6.03. Any corporation into which Escrow Agent, or any
successor to it of the duties and responsibilities created by this Agreement,
may be merged or converted or with which it or any successor to it may be
consolidated, or any corporation resulting from any merger, conversion,
consolidation or reorganization to which Escrow Agent or any successor to it
may be a party or any entity to which Escrow Agent may sell or transfer all or
substantially all of its corporate trust business, shall be the successor
Escrow Agent under this Agreement without the execution or filing of any paper
or any other act on the part of the Parties, anything herein to the contrary
notwithstanding.
ARTICLE 7
ADMINISTRATIVE PROVISIONS
Section 7.01. Escrow Agent shall keep and maintain for one year after
the Termination Date complete and accurate records of all moneys received and
disbursed under this Agreement, which shall be available for inspection by
Purchaser or Radio Unica, or any agent of any of them, at any time during
regular business hours.
Section 7.02. Unless otherwise indicated herein, all notices,
certificates, requests, demands and other communications provided for
hereunder shall be in writing and shall be (a) personally delivered, (b) sent
by first class United States mail, (c) sent by overnight courier of national
reputation, or (d) transmitted by telecopy, in each case addressed to the
Party to whom notice is being given at its address as set forth below and, if
telecopied, transmitted to that Party at its telecopier number set forth below
or, as to each Party, at such other address or telecopier number as may
hereafter be designated by such Party in a written notice to the other Parties
complying as to delivery with the terms of this Section 7.02. All such
notices, requests, demands and other communications shall be deemed to have
been given on (a) the date received if personally delivered, (b) when
deposited in the mail if delivered by mail, (c) the date sent if sent by
overnight courier, or (d) the date of transmission if delivered by telecopy.
Notwithstanding the foregoing, notice to Escrow Agent shall be effective only
upon receipt.
Section 7.03. Except to the extent the mandatory provisions of the
Bankruptcy Code apply, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
made and to be performed entirely in such state without regard to principles
of conflicts or choice of laws or any other law that would make the laws of
any other jurisdiction other than the State of New York applicable hereto. The
Parties agree that, except as provided herein or in the Purchase Agreement,
without limitation of any Party's right to appeal any order of the Bankruptcy
Court, upon the commencement of the Bankruptcy Case, (a) the Bankruptcy Court
shall retain exclusive jurisdiction to enforce the terms of this Agreement and
to decide any claims or disputes which may arise or result from, or be
connected with, this Agreement, any breach or default hereunder, or the
transactions contemplated herein; and (b) any and all Claims relating to the
foregoing shall be filed and maintained only in the Bankruptcy Court, and the
Parties hereby consent and submit to the jurisdiction of the Bankruptcy Court.
Section 7.04. Any provisions of this Agreement found to be prohibited
by law shall be ineffective only to the extent of such prohibition, and shall
not invalidate the remainder of this Agreement or the Purchase Agreement.
Section 7.05. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective permitted successors and assigns.
Section 7.06. This Agreement may be simultaneously executed in
several counterparts (including with signatures transmitted by facsimile),
each of which shall be an original and all of which shall constitute but one
and the same Agreement.
Section 7.07. This Agreement shall automatically terminate (the
"Termination Date") when Escrow Agent disburses all moneys held by it in
accordance with the terms of this Agreement upon the occurrence of the
following events:
(a) Purchaser and Radio Unica present one or more Payment
Request Forms, Final Determinations, and/or written agreements
contemplated by this Agreement to Escrow Agent and Escrow Agent pays
one hundred percent (100%) of the Escrow Funds as directed by
Purchaser and Radio Unica therein;
(b) The Parties mutually agree in writing with notice to
Escrow Agent;
provided, however, that Section 2.04, Section 4.02, Section 4.03 and the
provisions of this Article 7, shall survive the termination of this Agreement.
Purchaser and Radio Unica shall give Escrow Agent written notice that
the Termination Date has occurred as provided above together with instructions
to make any final disbursement provided for in this Section and Section 2.03.
Section 7.08. This Agreement (and, with respect to Purchaser and
Radio Unica, together with the Purchase Agreement) constitutes the entire
agreement of the Parties relating to the subject matter hereof.
Section 7.09. To the extent permitted by law, the terms of this
Agreement shall not be waived, altered, modified, supplemented or amended in
any manner whatsoever except by written instrument signed by the Parties
hereto, and then such waiver, consent, modification or change shall be
effective only in the specific instance and for the specific purpose given.
Section 7.10. This Agreement is solely for the benefit of the
Parties, and this Agreement shall not be deemed to confer upon or give to any
other third party any remedy, claim of liability or reimbursement, cause of
action or other right.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and year first written above.
RADIO UNICA COMMUNICATIONS CORP., Deutsche Bank Trust Company Americas,
Radio Unica Escrow Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer Title: Vice President
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
MULTICULTURAL RADIO BROADCASTING INC.,
Purchaser
By: /s/ ▇▇▇▇▇▇ ▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇
Title: President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit C
HOLDBACK ESCROW AGREEMENT
THIS HOLDBACK ESCROW AGREEMENT (this "Agreement") is made and entered
into as of [ ], by and among [ ], a national banking association, as escrow
agent ("Escrow Agent"),
Radio Unica Communications Corp., a Delaware corporation
("Radio Unica"), and Multicultural Radio Broadcasting Inc., a New Jersey
corporation ("Purchaser"). For purposes of this Agreement, Escrow Agent, Radio
Unica and Purchaser are hereinafter sometimes referred to individually as the
"Party" and collectively as the "Parties."
W I T N E S S E T H:
WHEREAS, Radio Unica and Purchaser, together with Radio Unica Corp.,
certain of its Subsidiary Licensees and certain of its Subsidiary Operating
Companies, have entered into that certain
Asset Purchase Agreement, dated as of
October 3, 2003 (the "Purchase Agreement"), relating to Radio Unica's sale and
assignment, and Purchaser's purchase and assumption, of the Purchased Assets and
the Assumed Liabilities (the "Transaction");
WHEREAS, this Agreement is being entered into simultaneously with the
Closing under the Purchase Agreement in order to specify and clarify the rights
and responsibilities of the Parties with respect to the Holdback Deposit; and
WHEREAS, the Parties hereby acknowledge and agree that any capitalized
terms used in this Agreement that are not specifically defined in this Agreement
shall have the meanings given them in the Purchase Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained in this Agreement, the Parties, intending to
be legally bound hereby, agree as follows:
ARTICLE 1
REPRESENTATIONS
Section 1.01. On the date hereof, Purchaser shall transfer to Escrow
Agent, by wire transfer in immediately available funds, from Purchaser's own
funds the Holdback Deposit which is a cash amount equal to Five Hundred
Thousand Dollars ($500,000.00) (the "Escrow Funds"). The Parties agree that
the Escrow Funds are to be held in trust pursuant to the terms of this
Agreement by Escrow Agent until the Termination Date (as defined in Section
7.07) unless earlier paid out as provided herein. Escrow Agent shall confirm
in writing to the other Parties the receipt by it of the Escrow Funds.
Section 1.02. Radio Unica and Purchaser hereby appoint Escrow Agent
to receive, hold, invest and disburse the Escrow Funds pursuant to this
Agreement; provided, however, Escrow Agent shall not be obligated to assume or
perform any obligation of Purchaser or Radio Unica under the Purchase
Agreement by reason of anything contained in this Agreement. Escrow Agent
hereby accepts such appointment and agrees to be bound by the terms and
conditions of this Agreement.
Section 1.03. Each of the Parties has authority to enter into this
Agreement, and has taken all actions necessary to authorize the execution of
this Agreement by the officers whose signatures are affixed hereto.
ARTICLE 2
ESCROW
Section 2.01. Escrow Agent shall establish a special escrow
designated as the "Holdback Deposit Escrow" (the "Escrow"), shall keep such
Escrow separate and apart from all other funds and moneys held by it, and
shall administer such Escrow as provided in this Agreement.
Section 2.02. All Escrow Funds referred to in Section 1.01, along
with any income or interest earned thereon, shall be credited to the Escrow.
Until disbursed as set forth herein, all such income or interest shall
constitute additional Escrow Funds.
Section 2.03.
(a) Escrow Agent shall disburse all Escrow Funds on deposit in the
Escrow to Purchaser, Radio Unica or both, as the case may be, upon
receipt of :
(i) one or more fully executed Payment Request Forms in
substantially the form attached hereto as Exhibit A, executed by an authorized
officer of each of Purchaser and Radio Unica, and otherwise pursuant to the
terms hereof. Upon receipt of a Payment Request Form, the amounts specified
therein shall be promptly paid directly to the Person or Persons entitled to
payment as specified in the Payment Request Form; or
(ii) a copy of a Final Determination (as defined below)
establishing a Party's right to the Escrow Funds pursuant to Article XI of the
Purchase Agreement. A "Final Determination" shall mean a final non-appealable
judgment of a court of competent jurisdiction and shall be accompanied by an
opinion of counsel for the presenting party to the effect that such judgment is
a final, non-appealable judgment of a court of competent jurisdiction.
(b) In the event of any disagreement between Radio Unica and Purchaser
resulting in adverse claims or demands being made in connection with the Escrow
Funds, Escrow Agent shall be entitled to retain the Escrow Funds until Escrow
Agent shall have received a Final Determination (accompanied by the opinion of
counsel referred to in Section 2.03(a)(ii)) directing delivery of the Escrow
Funds or a written agreement executed by Radio Unica and Purchaser directing
delivery of the Escrow Funds, in which event Escrow Agent shall disburse the
Escrow Funds in accordance with such Final Determination or agreement.
(c) Escrow Agent shall take all actions called for in any Payment
Request Form, Final Determination, or written agreement delivered under Section
2.03(a) or (b) within five (5) Business Days of the date such Payment Request
Form, Final Determination or written agreement, as the case may be, is received.
(d) Any Escrow Funds in the Escrow as of the Termination Date (as
defined below) shall be distributed to Radio Unica within ten (10) Business Days
after the Termination Date unless otherwise agreed to in writing by Purchaser
and Radio Unica.
Section 2.04. In the event that the Escrow Funds are not sufficient
for full payment of any amount to which Purchaser is entitled pursuant to
Section 2.03, Radio Unica shall continue to be liable for the shortfall amount
to the extent provided in Article XI of the Purchase Agreement.
Section 2.05. Escrow Agent is acting hereunder as a depository only
and Escrow Agent shall only be responsible for the safekeeping and investment
of Escrow Funds held in the Escrow, and the disbursement thereof in accordance
with this Agreement, and shall not be responsible for the authenticity or
accuracy of such certifications or documents, the application of amounts paid
pursuant to such certifications by the Persons to which they are paid, or the
sufficiency of Escrow Funds credited to the Escrow to make the payments herein
required. This Agreement expressly sets forth the duties and obligations of
Escrow Agent and no implied duties or obligations shall be read into this
Agreement against Escrow Agent.
ARTICLE 3
MONEYS IN ESCROW; INVESTMENT
Section 3.01. Except to the extent that and until Radio Unica is or
becomes expressly entitled to a distribution of all or a portion of the Escrow
Funds pursuant to the terms of this Agreement, (i) Purchaser and Radio Unica
intend, and hereby inform Escrow Agent, that the Escrow shall constitute an
escrow account in which Radio Unica and its creditors have no legal or
equitable right, title or interest of any kind whatsoever, and (ii) all of the
Escrow Funds and any earnings thereon shall be the sole property of Purchaser.
Prior to any distribution of the Escrow Funds in accordance with the terms of
this Agreement, Purchaser shall be treated as the owner thereof and any
interest or dividends earned thereon for all purposes (including Tax
purposes).
Section 3.02. Escrow Funds held by Escrow Agent hereunder shall be
invested and reinvested by Escrow Agent in short term money market funds
investing in direct obligations of the United States of America or repurchase
agreements containing such obligations or, in direct obligations of the United
States of America having maturities of 30 days or less, or short-term
securities issued or guaranteed by the United States government or any
agencies or instrumentalities thereof, in either case, as Escrow Agent is
directed by Purchaser in writing. Such investments shall be registered in the
name of Escrow Agent and held by Escrow Agent as part of the Escrow and,
together with earnings thereon, shall constitute further Escrow Funds
hereunder. Escrow Agent may make investments through its investment division
or short-term investment department. Escrow Agent shall sell and reduce to
cash a sufficient amount of investments of the Escrow Funds whenever the cash
balance therein is insufficient to pay the amounts required to be paid
therefrom. Escrow Agent shall, without further direction from any Person, sell
such investments as and when required to make any payments from the Escrow
required to be made pursuant to this Agreement. Unless Escrow Agent is guilty
of gross negligence, bad faith or willful misconduct with regard to its duties
hereunder, Escrow Agent shall not be responsible or liable for any loss
suffered in connection with any investment of moneys made by Escrow Agent in
accordance with this Article 3.
Section 3.03. Escrow Agent shall furnish to Radio Unica and Purchaser
reports accounting for all investments and interest and income therefrom. Such
accounting shall be furnished no less frequently than every month and upon
request of Radio Unica or Purchaser.
ARTICLE 4
ESCROW AGENT'S AUTHORITY; INDEMNIFICATION
Section 4.01. Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in
such a writing or instrument, and may assume that any Person purporting to
give any writing, notice, advice or instructions in connection with the
provisions hereof has been duly authorized to do so. Prior to or concurrent
with the delivery and execution of this Agreement each of Purchaser and Radio
Unica shall deliver an incumbency certificate to Escrow Agent designating the
person or persons of such Party from whom the Escrow may accept written
instructions. Each incumbency certificate shall contain a specimen signature
of each person so designated and each of Purchaser and Radio Unica may update
or revise its incumbency certificate from time to time. Escrow Agent shall not
be liable in any manner for the sufficiency or correctness as to form, manner
and execution, or validity of any instrument deposited with it, nor as to the
identity, authority or right of any Person executing the same; and its duties
hereunder shall be limited to those specifically provided herein.
Section 4.02. Unless Escrow Agent is guilty of gross negligence, bad
faith or willful misconduct with regard to its duties hereunder, Purchaser and
Radio Unica hereby agree, jointly and severally, to indemnify Escrow Agent and
hold it harmless from any and all claims, liabilities, losses, actions, suits
or proceedings at law or in equity, or any other expense, fees or charges of
any character or nature, which it may incur or with which it may be threatened
by reason of its acting as Escrow Agent under this Agreement; and in
connection therewith, to indemnify Escrow Agent against any and all expenses,
including reasonable attorneys' fees and the cost of defending any action,
suit or proceeding or resisting any claim. Escrow Agent shall be vested with a
lien on all property deposited hereunder for indemnification, for reasonable
attorneys' fees, court costs, for any suit, interpleader or otherwise, or any
other expenses, fees or charges of any character or nature, which may be
incurred by Escrow Agent by reason of disputes arising between Purchaser and
Radio Unica as to the correct interpretation of the Purchase Agreement or this
Agreement and instructions given to Escrow Agent hereunder, or otherwise, with
the right of Escrow Agent, regardless of the instructions aforesaid, to hold
the said property until and unless said additional expenses, fees and charges
shall be fully paid. The foregoing indemnities in this Section 4.02 shall
survive the resignation or substitution of Escrow Agent or the Termination
Date.
Section 4.03. If Purchaser and Radio Unica shall be in disagreement
about the interpretation of the Purchase Agreement or this Agreement, or about
the rights and obligations, or the propriety of any action contemplated by
Escrow Agent hereunder, Escrow Agent may, but shall not be required to, file
an appropriate civil action to resolve the disagreement. Escrow Agent shall be
indemnified, jointly and severally, by Purchaser and Radio Unica for all
costs, including reasonable attorneys' fees, in connection with such civil
action, and shall be fully protected in suspending all or part of its
activities under this Agreement until a final judgment, without any further
right of appeal, in such action is received.
Section 4.04. Escrow Agent shall not be liable for any mistakes of
facts or errors of judgment, or for any acts or omissions of any kind, unless
caused by its gross negligence, bad faith or willful misconduct.
Section 4.05. Escrow Agent may consult with legal counsel of its own
choosing, at the joint expense of Purchaser and Radio Unica, as to any matter
relating to this Holdback Escrow Agreement, and Escrow Agent shall not incur
any liability in acting in good faith in accordance with any advice from such
counsel.
Section 4.06. Escrow Agent shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of Escrow Agent
(including but not limited to any act or provision of any present or future
law or regulation or governmental authority, any act of God or war, civil
unrest, local or national disturbance or disaster, any act of terrorism, or
the unavailability of the Federal Reserve Bank wire or facsimile or other wire
or communication facility).
Section 4.07. Escrow Agent shall not be under any duty to give the
Escrow Funds held by it hereunder any greater degree of care than it gives its
own similar property and shall not be required to invest any funds held
hereunder except as directed in this Holdback Escrow Agreement. Uninvested
funds held hereunder shall not earn or accrue interest.
Section 4.08. In the event of any ambiguity or uncertainty hereunder
or in any notice, instruction or other communication received by Escrow Agent
hereunder, Escrow Agent may, in its sole discretion, refrain from taking any
action other than to retain possession of the Escrow Funds, unless Escrow
Agent receives written instructions signed by each of Purchaser and Radio
Unica, which eliminates such ambiguity or uncertainty.
Section 4.09. In the event of any dispute between or conflicting
claims among the Purchaser and Radio Unica and any other Person with respect
to any Escrow Funds, Escrow Agent shall be entitled, in its sole discretion,
to refuse to comply with any and all claims, demands or instructions with
respect to such Escrow Funds so long as such dispute or conflict shall
continue, and Escrow Agent shall not be or become liable in any way to
Purchaser or Radio Unica for failure or refusal to comply with such
conflicting claims, demands or instructions. Escrow Agent shall be entitled to
refuse to act until, in its sole discretion, either (i) such conflicting or
adverse claims or demands shall have been determined by a final order,
judgment or decree of a court of competent jurisdiction, which order, judgment
or decree is not subject to appeal, or settled by agreement between the
conflicting parties as evidenced in a writing satisfactory to Escrow Agent or
(ii) Escrow Agent shall have received security or an indemnity satisfactory to
it sufficient to hold it harmless from and against any and all losses which it
may incur by reason of so acting. Any court order, judgment or decree shall be
accompanied by a legal opinion by counsel for the presenting party,
satisfactory to Escrow Agent, to the effect that said order, judgment or
decree represents a final adjudication of the rights of the parties by a court
of competent jurisdiction, and that the time for appeal from such order,
judgment or decree has expired without an appeal having been filed with such
court. Escrow Agent shall act on such court order and legal opinions without
further question. Escrow Agent may, in addition, elect, in its sole
discretion, to commence an interpleader action or seek other judicial relief
or orders as it may deem, in its sole discretion, necessary. The costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with such proceeding shall be paid by, and shall be deemed a joint
and several obligation of, Purchaser and Radio Unica.
ARTICLE 5
ESCROW AGENT'S COMPENSATION
Section 5.01. As partial consideration of Radio Unica's entering into
this Agreement, Purchaser hereby agrees to be solely responsible for and pay
Escrow Agent its annual (if applicable) fee for the services to be rendered
hereunder as provided in Exhibit B hereto. Any fees due to Escrow Agent,
including investment fees or other investment-related charges, may be deducted
by Escrow Agent from the investment earnings on the Escrow if Escrow Agent
provides Purchaser and Radio Unica with a listing of such fees in reasonable
detail. Any investment fees or investment-related charges in excess of
investment earnings will be paid by Purchaser.
ARTICLE 6
CHANGE OF ESCROW AGENT
Section 6.01. A national banking association located in the United
States of America or a state bank or trust company organized under the laws of
a state of the United States of America, qualified as a depository of public
funds, may be substituted to act as Escrow Agent under this Agreement upon the
agreement of Purchaser and Radio Unica. Such substitution shall not be deemed
to affect the rights or obligations of the Parties. Upon any such
substitution, Escrow Agent agrees to assign to such substitute Escrow Agent
its rights and obligations under this Agreement.
Section 6.02. Escrow Agent or any successor may at any time resign by
giving notice by registered or certified mail to Purchaser and Radio Unica of
its intention to resign and of the proposed date of resignation, which shall
be a date not less than thirty (30) days after such notice is deposited in the
United States mail with postage fully prepaid, unless an earlier resignation
date and the appointment of a successor Escrow Agent shall have been or are
approved by Purchaser and Radio Unica. If Purchaser and Radio Unica are unable
to agree upon a successor escrow agent within thirty (30) days after such
notice, Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent or for other appropriate relief.
Section 6.03. Any corporation into which Escrow Agent, or any
successor to it of the duties and responsibilities created by this Agreement,
may be merged or converted or with which it or any successor to it may be
consolidated, or any corporation resulting from any merger, conversion,
consolidation or reorganization to which Escrow Agent or any successor to it
may be a party or any entity to which Escrow Agent may sell or transfer all or
substantially all of its corporate trust business, shall be the successor
Escrow Agent under this Agreement without the execution or filing of any paper
or any other act on the part of the Parties, anything herein to the contrary
notwithstanding.
ARTICLE 7
ADMINISTRATIVE PROVISIONS
Section 7.01. Escrow Agent shall keep and maintain for one year after
the Termination Date complete and accurate records of all moneys received and
disbursed under this Agreement, which shall be available for inspection by
Purchaser or Radio Unica, or any agent of any of them, at any time during
regular business hours.
Section 7.02. Unless otherwise indicated herein, all notices,
certificates, requests, demands and other communications provided for
hereunder shall be in writing and shall be (a) personally delivered, (b) sent
by first class United States mail, (c) sent by overnight courier of national
reputation, or (d) transmitted by telecopy, in each case addressed to the
Party to whom notice is being given at its address as set forth below and, if
telecopied, transmitted to that Party at its telecopier number set forth below
or, as to each Party, at such other address or telecopier number as may
hereafter be designated by such Party in a written notice to the other Parties
complying as to delivery with the terms of this Section 7.02. All such
notices, requests, demands and other communications shall be deemed to have
been given on (a) the date received if personally delivered, (b) when
deposited in the mail if delivered by mail, (c) the date sent if sent by
overnight courier, or (d) the date of transmission if delivered by telecopy.
Notwithstanding the foregoing, notice to Escrow Agent shall be effective only
upon receipt.
Section 7.03. Except to the extent the mandatory provisions of the
Bankruptcy Code apply, this Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
made and to be performed entirely in such state without regard to principles
of conflicts or choice of laws or any other law that would make the laws of
any other jurisdiction other than the State of New York applicable hereto. The
Parties agree that, except as provided herein or in the Purchase Agreement,
without limitation of any Party's right to appeal any order of the Bankruptcy
Court, upon the commencement of the Bankruptcy Case, (a) the Bankruptcy Court
shall retain exclusive jurisdiction to enforce the terms of this Agreement and
to decide any claims or disputes which may arise or result from, or be
connected with, this Agreement, any breach or default hereunder, or the
transactions contemplated herein; and (b) any and all Claims relating to the
foregoing shall be filed and maintained only in the Bankruptcy Court, and the
Parties hereby consent and submit to the jurisdiction of the Bankruptcy Court.
Section 7.04. Any provisions of this Agreement found to be prohibited
by law shall be ineffective only to the extent of such prohibition, and shall
not invalidate the remainder of this Agreement or the Purchase Agreement.
Section 7.05. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective permitted successors and assigns.
Section 7.06. This Agreement may be simultaneously executed in
several counterparts (including with signatures transmitted by facsimile),
each of which shall be an original and all of which shall constitute but one
and the same Agreement.
Section 7.07. This Agreement shall automatically terminate (the
"Termination Date") when Escrow Agent disburses all moneys held by it in
accordance with the terms of this Agreement upon the occurrence of the
following events:
(a) Purchaser and Radio Unica present one or more Payment
Request Forms, Final Determinations, and/or written agreements
contemplated by this Agreement to Escrow Agent and Escrow Agent pays
one hundred percent (100%) of the Escrow Funds as directed by
Purchaser and Radio Unica therein;
(b) The Parties mutually agree in writing with notice to
Escrow Agent;
provided, however, that Section 2.04, Section 4.02, Section 4.03 and the
provisions of this Article 7, shall survive the termination of this Agreement.
Purchaser and Radio Unica shall give Escrow Agent written notice that
the Termination Date has occurred as provided above together with instructions
to make any final disbursement provided for in this Section and Section 2.03.
Section 7.08. This Agreement (and, with respect to Purchaser and
Radio Unica, together with the Purchase Agreement) constitutes the entire
agreement of the Parties relating to the subject matter hereof.
Section 7.09. To the extent permitted by law, the terms of this Agreement shall
not be waived, altered, modified, supplemented or amended in any
manner
whatsoever except by written instrument signed by the Parties hereto, and then
such waiver, consent, modification or change shall be effective only in the
specific instance and for the specific purpose given.
Section 7.10. This Agreement is solely for the benefit of the
Parties, and this Agreement shall not be deemed to confer upon or give to any
other third party any remedy, claim of liability or reimbursement, cause of
action or other right.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the day and year first written above.
RADIO UNICA COMMUNICATIONS CORP., [BANK, N.A.],
Radio Unica Escrow Agent
By:________________________________________ By:____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name:
Title:
Title: Chief Financial Officer
Address:
Address: ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ Telephone:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
MULTICULTURAL RADIO BROADCASTING INC.,
Purchaser
By:___________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇