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Exhibit
10.2
EXECUTION COPY
AMENDMENT
TO
ASSET PURCHASE
AGREEMENT
THIS AMENDMENT (the
“Amendment”) dated as of November 2, 2006 (the
“Amendment Date”) amends that ASSET PURCHASE AGREEMENT
(the “Agreement”) made and entered into August 2,
2006, by and among Entravision Communications Corporation, a
Delaware corporation (“ECC”), Entravision-Texas Limited
Partnership, a Texas limited partnership (“ECC LP”) and
Entravision Holdings, LLC, a California limited liability company
(“Holdings”), on the one hand, and Liberman
Broadcasting of Dallas, Inc., a California corporation
(“LBI”), and Liberman Broadcasting of Dallas License
Corp., a California corporation (“LBI Sub”), on the
other. ECC, ECC LP and Holdings are referred to collectively as
“Seller” and LBI and LBI Sub are referred to
collectively as “Buyer.” Other capitalized terms used,
but not defined, herein shall have the meaning given such terms in
the Agreement.
W I T N E S S E T
H:
WHEREAS , the Buyer
and Seller have agreed to amend the Agreement in certain respects,
and
WHEREAS , the
amendment to the Agreement is intended to eliminate certain
disputes that have arisen between Buyer and Seller related to the
transactions contemplated by the Agreement.
NOW THEREFORE , in
consideration of the mutual promises and covenants herein
contained, the Parties, intending to be legally bound agree as
follows:
1.1 LER Agreement,
Primary Studio Lease . Section 1.1, Schedule I, Schedule
II and Schedule IV of the Agreement are amended as
follows:
1.1.1 The definition
of “Assumed Contracts” is amended as a result of the
amendment to Schedule I pursuant to Section 1.1.2 of this
Amendment.
1.1.2 The definition
of “Prepaid Amounts” and Section 3.6.1 shall be
amended so as to delete references to the Primary Studio Lease set
forth therein.
1.1.3 Schedule I is
amended to remove from Schedule I the following agreements:
(a) the LER Agreement, and (b) the Primary Studio Lease.
The remaining items on Schedule I shall not be renumbered as a
result of this amendment.
1.1.4 Schedule II is
amended to remove the Primary Studio Lease (Item 5 on such
Schedule).
1.1.5 Schedule III is
amended to add “Pending complaint regarding KTCY notified to
Seller by the FCC Enforcement Bureau on November 1, 2006
the
(“ FCC Complaint
”),” which is added solely as an exception to the first
sentence of Section 4.3.3 of the Agreement.
1.1.6 Schedule IV is
amended to remove the reference to Item 2 and both references
to Item 6, in each case, appearing in No. 2 under the
“Required Consents (Seller)” section of Schedule
IV.
1.1.7 Provided Buyer
gives at least one business days’ notice (which notice may be
telephonic or by email, as may be agreed by Buyer and Seller) of
the date and time on which it wishes to enter the premises covered
by the Primary Studio Lease (the “Mockingbird
Premises”), and such entry will occur during the forty five
days following the Closing Date, Seller will (a) provide
notice to the Mockingbird Landlord on the same business day as
Seller receives notice from Buyer (provided such notice is received
prior to 5 pm Pacific time) of the desired date and time of
Buyer’s move, (b) work with Buyer to obtain the
necessary approvals from landlord as expeditiously as possible, and
(c) provided the landlord under the Primary Studio Lease
provides the necessary approval of such date and time, provide
access to Buyer to the Mockingbird Premises at the approved date
and time for the purpose of allowing Buyer to remove any Purchased
Assets located at the Mockingbird Premises at Buyer’s sole
cost. On up to five occasions, Buyer’s request under the
preceding sentence may be for an identified contiguous period of up
to five days during which Buyer can access the Mockingbird Premises
at any times during such period as are approved by landlord, and
Seller will provide such access within such contiguous period as
directed by Buyer. In addition, Seller will cooperate with Buyer
and provide Buyer access to the Mockingbird Premises from time to
time during business hours as reasonably requested by Buyer during
business hours for the purpose of removing Purchased Assets which
do not require advance landlord approval for removal. Seller agrees
to perform all obligations as tenant under the Primary Studio Lease
during such forty-five day period, and agrees to cooperate in good
faith with Buyer’s removal of the Purchased Assets from the
Mockingbird Premises, including providing notices and making such
requests of the landlord as necessary to accommodate the access and
removal rights referenced herein. Buyer shall use reasonable care
in the removal of the Purchased Assets from the Mockingbird
Premises, provided that Buyer shall not be obligated to restore any
portions of the Mockingbird Premises following such removal except
to the extent of damage directly caused by Buyer which exceeds that
which would customarily occur in the course of such removal. In no
event shall Buyer be liable for any repair or restoration of the
Mockingbird Premises other than with respect to the repair of
damage directly caused by Buyer which exceeds that which would
customarily occur in the course of such removal, if any, or if
Buyer removes any property not included in the Purchased Assets.
Other than such access, Buyer shall have no right, title or
interest in or under the LER Contract or the Primary Studio Lease
(including, without limitation, to any security deposit
thereunder), and in no event will Buyer have any liability or
responsibility under the LER Contract or the Primary Studio Lease.
Seller shall have no responsibility or liability for any damages to
or loss of the Purchased Assets on and after the
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Closing Date, except on
account of any actions taken by Seller or any failure of Seller to
use commercially reasonable efforts to secure the Mockingbird
Premises prior to Buyer’s removal of the Purchased Assets
therefrom. Except as set forth in the preceding sentence, all risk
of loss of or damages to the Purchased Assets following the Closing
Date shall be borne by Buyer. If any Purchased Assets remain on the
Mockingbird Premises after the 45 day period described above, as
tolled pursuant to the next sentence, Buyer will pay Seller
(i) the amount of $540 per day for each day that it continues
to occupy the premises, and (ii) all Damages suffered by
Seller in the event Buyer continues to occupy any portion of the
Mockingbird Premises after expiration of the Primary Studio Lease.
The 45 day period will toll, day for day, and solely for purposes
of the rental obligation, but in no event longer than the
expiration of the Primary Studio Lease, for each day Seller is in
material default of its contractual obligations under this
Section 1.1.7 such that Buyer has been unable to obtain access
to the Mockingbird Premises on a day for which it has requested
access in accordance with this Section 1.1.7.
1.2 Closing Date
Agreed; Documents in Final Form. The Parties agree that the
Closing Date shall be on the date hereof, and that the form of each
document or instrument to be delivered at the Closing has been
mutually agreed to by each of the Parties on or prior to the
Amendment Date.
1.3
Section 2.1, Section 2.2.3. Sections 2.1 and 2.2.3
are amended as follows:
1.3.1 Section 2.1
is amended to delete the “and” at the end of
Section 2.1.7, to add a semi-colon and “and” at
the end of Section 2.1.8, and to add as a new subsection
2.1.9: “All accounts receivable of Seller accruing prior to
the Closing Date with respect to advertisements aired on one or
more of the Stations prior to the Closing Date and all other
accounts receivable exclusively related to one or more of the
Stations or the Towers (the “ Purchased ARs ”),
except as expressly excluded pursuant to Section 2.2.3.
Notwithstanding any provision of this Agreement to the contrary, no
representation or warranty is given by Seller to Buyer related to
the Purchased ARs, except that Seller represents and warrants to
Buyer that (i) Seller is the owner of the Purchased ARs, free
and clear of all Encumbrances other than Permitted Liens and that
it has not assigned any rights with respect to such receivables to
any Person except pursuant to this Section 2.1.9,
(ii) Schedule 2.1.9 hereto constitutes a true and correct list
of the Purchased ARs as of October 24, 2006 (or, after
delivery of the updated Schedule 2.1.9 referenced in the last
sentence of this Section 1.3.1, as of November 1, 2006),
(iii) Schedule 2.1.9 hereto accurately reflects the aggregate
dollar amount of the Purchased ARs as of October 24, 2006 (or,
after delivery of the updated Schedule 2.1.9 referenced in the last
sentence of this Section 1.3.1, as of November 1, 2006),
and (iv) with respect to each receivable listed on Schedule
2.1.9, that each such receivable (a) represents actual
indebtedness or other obligations incurred by the applicable
account debtors and owed to the Seller (prior to the assignment of
the Purchased ARs to Buyer) and (b) has arisen from bona fide
transactions between the account debtor and the Seller in the
ordinary course of business. Seller agrees that the representations
and warranties set forth in the preceding
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clauses (i), (ii) and
(iii) are Fundamental Representations under the Agreement, and
Buyer agrees that none of the representations and warranties set
forth in the preceding sentence is a representation or warranty as
to collectibility. Within five (5) business days of the
Closing Date, the Seller shall send a notice, in a form acceptable
to Buyer, to each of the account debtors with respect to such
receivables informing such account debtors that such payments are
to be paid to LBI.” Buyer hereby agrees that as and when the
Purchased ARs are collected by Buyer, Buyer will pay LER the actual
commissions due pursuant to the LER Agreement on such Purchased ARs
as shown in Schedule 2.1.9, in an amount not to exceed $21,036.07.
Additionally, Seller shall cause LER to forward any payments
received by LER on Buyer’s behalf to Buyer within five
(5) business days and shall not be entitled to receive any
commissions from Buyer if LER has failed to forward any payments
received on Buyer’s behalf to Buyer within such five
(5) business day period. Seller shall provide an updated and
revised Schedule 2.1.9 dated as of November 1, 2006 not later
than November 13, 2006 which, on the date provided to Buyer,
shall replace the Schedule 2.1.9 attached hereto in its entirety
(including for purposes of the representations and warranties set
forth above), and shall have the same level of detail as is set
forth in the Schedule 2.1.9 attached hereto, provided Buyer
provides Seller all needed access to the books and records need to
compile such schedule.
1.3.2 The references
to Section 2.1.8 in Sections 2.1, 4.4.1 and 4.20 shall be
amended so as to replace such references with references to
Section 2.1.9, provided , however , that Buyer
acknowledges as an exception to the representations in Sections
4.4.1 and 4.20 that LER has the right to commissions on the
accounts receivable included in the Purchased Assets pursuant to
Section 2.1.9 in an amount not to exceed
$21,036.07.
1.3.3
Section 2.2.3 is amended to read in its entirety “the
accounts receivable of Seller accruing prior to the Closing Date
totaling up to $194,962 due from Radio Ayo in the aggregate (up to
$130,000 of which is in the 270-day column and up to $64,962 of
which is in the 360-day column, in each case, as referenced in the
October 30, 2006 e-mail from Elliot Evers to Lenard Liberman)
and related to KZMP (AM) (the “ Broker Receivables
”);”.
1.3.4 For purposes of
clarity, the files, records and logs described in
Section 2.1.7 of the Agreement shall specifically include the
traffic system data, client billing records, invoices and other
original records of the Stations regarding the historical business
activity with the advertisers whose advertisements give rise to the
accounts receivable included in the Purchased Assets pursuant to
Section 2.1.9 of the Agreement, and Seller further agrees to
provide reasonable assistance to Buyer in connection with any
dispute related to the collection of any such accounts receivable
at Buyer’s sole cost and expense for Seller’s
out-of-pocket costs or expenses, if any, incurred in connection
therewith. To the extent any files, records or logs described in
Section 2.1.7 (including as clarified hereby) are not
delivered to Buyer on the Closing Date, Seller will deliver such
records from
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time to time as requested by
Buyer but in all events within two business days of Buyer’s
request therefor.
1.4 Amendment of
Purchase Price; Amendment of Section 3.1.
1.4.1 Section 3.1
is amended to delete “Ninety-Fi
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