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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-Five
Million Dollars ($95,000,000)," and substitute therefor "Ninety-Two
Million five Hundred Thousand Dollars ($92,500,000), of which
$22
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