EXHIBIT 10.15
AGREEMENT TO AMEND
ASSET PURCHASE AGREEMENT
This Agreement to Amend Asset Purchase Agreement is made as of this 3rd
day of October by and between American Radio Systems Corporation, a Delaware
corporation ("Seller"), and Xxxxxx Communications of West Palm Beach, Inc., a
Florida corporation ("Buyer").
Reference is hereby made to that certain Asset Purchase Agreement dated
May 27, 1997 by and between Seller and Buyer (the "Agreement"). In consideration
of the mutual covenants and promises herein contained, Seller and Buyer hereby
agree to amend the Agreement as set forth in this Agreement to Amend.
1. Paragraph A of the Premises of the Agreement is hereby amended by
deleting "WEAT (AM), West Palm Beach" from the definition of Stations contained
therein. Further, all other references to WEAT(AM), if any, are hereby deleted
from the Agreement.
2. Section 2.3(a) of the Agreement is hereby amended to replace
"Thirty-Three Million Dollars ($33,000,000)" with "Twenty-Nine Million Dollars
($29,000,000)."
3. Section 2.3(b) of the Agreement is hereby amended to add the phrase
"or its designated subsidiary, American Tower Systems, Inc." after the word
"Seller" in the second line thereof.
4. The first sentence of Section 2.4 is hereby deleted.
5. Section 6.10 of the Agreement is hereby amended by (i) replacing
"Exhibit 6.10(a) XXXX Main Antenna Lease Terms" with "Exhibit 6.10(a) Option
Agreement" and (ii) deleting therefrom references to "Exhibit 6.10(f) XXXX
Rental Sharing Agreement." Furthermore, "Exhibit 6.10(a) XXXX Main Antenna Lease
Terms" to the Agreement is hereby replaced in its entirety with "Exhibit 6.10(a)
Option Agreement") which is attached hereto as Exhibit A, and "Exhibit 6.10(f)
Rental Sharing Agreement" to the Agreement is hereby deleted in its entirety.
Buyer hereby waives the condition of Closing that Seller enter into the
lease contemplated by Section 6.10 and attached as Exhibit 6.10(e) of the
Agreement on or before the Closing Date. Notwithstanding the foregoing sentence,
Seller and Buyer hereby agree to enter into (or in the case of Buyer, cause
Xxxxxx Communications Corporation, a Delaware corporation ("PCC"), or an
affiliate thereof to enter into) the lease contemplated by Section 6.10 and
attached as Exhibit 6.10(e) of the Agreement after the Closing in substantially
the form set forth on Exhibit 6.10(e) of the Agreement and to negotiate the
terms of such lease not set forth therein in good faith.
6. Section 7.1(G) of the Agreement is hereby deleted in its entirety.
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7. Section 7.1(I) of the Agreement is hereby amended by deleting it in
its entirety and replacing it with the following new Section 7.1(I): "New
Transmitter Site for WKGR. Radio Station WKGR shall be fully operational from
Hobe Sound Tower in the manner contemplated by the lease to be entered into in
accordance with Exhibit 6.10(b)."
8. Buyer hereby acknowledges that the FCC has granted License Corp. a
construction permit (File No. XXXX-000000XX) to construct a new transmitter for
XXXX(FM) at the Hobe Sound Tower site (the "Construction Permit"). Seller shall
cause License Corp. to assign the Construction Permit to Buyer at Closing
together with the main station license for XXXX(FM). Except as otherwise
provided in the Agreement, upon such assignment of the Construction Permit,
neither License Corp. nor Seller shall have any liability to Buyer with respect
to the extension of the Construction Permit after the time of the Closing.
9. The Schedules to the Agreement are hereby amended and restated in
their entirety as set forth on Exhibit B hereto.
10. Seller hereby consents to Buyer's assignment of its rights,
interests and obligations under the Agreement, as amended hereby, and the Escrow
Agreement to Xxxxxx Communications Corporation, a Delaware corporation, and the
assignment of any or all of its rights, interests and obligations under such
documents by PCC to LWP Radio, Inc., a Delaware corporation ("LWPR"), and by
LWPR to Clear Channel Metroplex, Inc., a Nevada corporation ("CCM"), and Clear
Channel Metroplex Licenses, Inc., a Nevada corporation ("CCML").
11. Buyer and Seller hereby acknowledge that upon receipt of any
required regulatory consent, and the satisfaction of certain other conditions,
Buyer shall sell substantially all the assets of the Stations acquired from
Seller to CCM and CCML pursuant to an Asset Purchase Agreement dated as of
August 25, 1997 (the "Clear Channel Agreement"), by and among PCC, X. Xxxxxx,
Inc., CCM, CCML, and Clear Channel Communications, Inc.
Buyer and Seller further acknowledge that upon the closing of the sale
of the assets of the Stations from Buyer to CCM and CCML pursuant to the Clear
Channel Agreement, Buyer has agreed to assign all of its rights, liabilities and
obligations (except for Buyer's indemnification obligations under Section 10.3
which relate to a breach or failure of Buyer to perform under the Purchase
Agreement prior to Closing, any obligations under the Purchase Agreement to pay
FCC and HSR Act filing fees, and any obligations described in the second
paragraph of Section 5 hereof) under the Purchase Agreement arising after the
closing of the Clear Channel Agreement to CCM and CCML, and CCM and CCML have
agreed to accept such assignment and assume such liabilities and obligations.
Buyer and Seller hereby agree that such assignment and assumption shall
constitute a novation of the Agreement, and that from and after such assignment
and assumption, Seller shall not have any remedies against PCC, LWP Radio, Inc.
and their affiliates under Section 10.3 of the Agreement.
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12. The Agreement, as amended hereby, is hereby ratified, approved and
confirmed in all respects.
13. From and after the date hereof, each reference in the Agreement to
"this Agreement", "hereof", or "hereunder" or words of like import, and all
references to the Agreement in any and all agreements, instruments, documents,
notes, certificates and other writings of every kind and nature shall be deemed
to mean the Agreement, as amended hereby.
14. This Agreement to Amend shall be governed in all respects by the
laws of the State of Florida (without giving effect to the provisions thereof
relating to conflicts of law).
15. Any capitalized terms not defined herein shall have the meaning
given to such terms in the Agreement, as amended hereby.
16. This Agreement to Amend may be signed in counterparts with the same
effect as if the signature on each counterpart were upon the same instrument.
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IN WITNESS WHEREOF, the Seller and Buyer have executed this Agreement
to Amend as of the date first written above.
AMERICAN RADIO XXXXXX COMMUNICATIONS
SYSTEMS CORPORATION OF WEST PALM BEACH, INC.
By: By:
Name: Name:
Title: Title:
