EXHIBIT 2.3
SECOND AMENDMENT TO PURCHASE AGREEMENT
This Second Amendment to Purchase Agreement (this "Amendment") is
made this 26th day of October, 1998, by and among Catholic Radio Network, LLC, a
California Limited Liability Company ("CRN"), Children's Broadcasting
Corporation, a Minnesota corporation ("CBC") and the wholly-owned subsidiaries
of CBC listed on the signature pages hereto (collectively, the "Subsidiaries"
and collectively with CBC, the "Sellers").
WHEREAS, CRN and the Sellers are parties to that certain Purchase
Agreement dated as of April 17, 1998, as amended on September 29, 1998 (the
"Purchase Agreement") regarding the sale by the Sellers to CRN of substantially
all of the assets of nine (9) radio stations and all of the stock of Children's
Radio of New York, Inc. ("CRNY"), owner of WBAH(AM)/WJDM(AM).
WHEREAS, CRN and the Sellers wish to amend the terms of the Purchase
Agreement to reduce the number of Stations to be purchased by CRN and to provide
for an adjustment to the amount and method of payment of the purchase price
payable for the Stations.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The Sellers, and each of them, hereby waive any and all
claims they may have against CRN, its officers, directors, employees and
affiliates (collectively, the "CRN Parties") regarding any alleged breach of the
Purchase Agreement by the CRN Parties as of, or prior to the date of this
Amendment.
2. The provisions of the Purchase Agreement are hereby amended
to delete from the list of "Stations" to be sold to CRN under the Purchase
Agreement the following: KAHZ(AM), Fort Worth, Texas; KIDR(AM), Phoenix,
Arizona; and WBAH(AM)/WJDM(AM), Elizabeth, New Jersey (collectively, the
"Excluded Stations"). The provisions of the Purchase Agreement are also hereby
amended to delete all references to the Excluded Stations, the assets and
liabilities of the Excluded Stations, Children's Radio of Dallas, Inc., KAHZ-AM,
Inc., Children's Radio of Phoenix, Inc., KIDR-AM, Inc., Childrens' Radio of New
York, Inc., WJDM-AM, Inc. and the stock of Children's Radio of New York, Inc.
and WJDM-AM, Inc.
3. The Schedules attached to the Purchase Agreement are hereby
amended to delete all references to information pertaining solely to the
Excluded Stations. Within three (3) business days of the effective date of this
Amendment, the Sellers will deliver to CRN revised Schedules acceptable to CRN,
deleting all information pertaining to the Excluded Stations, with such deletion
of information being the only change from the forms of Schedules delivered to
CRN at the time of the execution of the Purchase Agreement.
4. CRN hereby waives its rights to purchase the Excluded
Stations under the Purchase Agreement and acknowledges and agrees that the
Sellers are free to contract with a third party for the sale of the Excluded
Stations. CRN acknowledges and agrees that the
provisions of Section 6.16.4 of the Purchase Agreement shall no longer be
applicable to any actions taken by the Sellers in connection with the Excluded
Stations.
5. The Sellers, and each of them, hereby expressly acknowledge
that the amendment to Sections 4.1, 4.2.2 and 4.2.5 below and the payment by CRN
of the additional $125,000 at Closing through a reduction of the KPLS Holdback
to $110,000 will constitute payment in full of the second Extension Fee called
for under Section 7 of the First Amendment to the Purchase Agreement.
6. Article 2 of the Purchase Agreement is hereby deleted in
its entirety.
7. Section 4.1 of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
4.1 PURCHASE PRICE. As the purchase price for the Acquired
Assets, Buyer agrees to pay to CBC the sum of Thirty-Seven
Million Dollars ($37,000,000), subject to adjustment as provided
herein (the "Purchase Price"), provided, however, that One
Hundred Ten Thousand Dollars ($110,000) of the Purchase Price
shall be retained by Buyer as the KPLS Holdback as provided in
Section 4.2.5 below.
8. Section 4.2.2 of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
4.2.2 Eighteen Million Eight Hundred Ninety Dollars
($18,890,000.00) shall be paid to Sellers (or their designees to
pay off outstanding liens or encumbrances on the Station Assets)
in immediately available funds by wire transfer at Closing and
One Hundred Ten Thousand Dollars ($110,000) shall be retained by
Buyer as the KPLS Holdback;
9. Section 4.2.3 of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
4.2.3 Fifteen Million Dollars ($15,000,000) of the Purchase
Price payable hereunder shall be payable to CBC in the form of a
promissory note from CRN Broadcasting, LLC, a wholly-owned
subsidiary of Buyer ("CRNB"), in form reasonably acceptable to
counsel for the Sellers and Buyer (the "Note"). The Note shall
have a term of eighteen (18) months, bear simple interest at a
rate of 10% per annum, and be prepayable, in whole or in part,
by Buyer at any time without penalty. Interest only shall be
payable on a monthly basis through the term of the Note, with
the outstanding principal being due at the maturity of the Note.
CRNB will establish a One Million Dollar ($1,000,000) interest
reserve escrow account pursuant to an Interest Reserve Escrow
Agreement in form and substance reasonably acceptable to counsel
for the Sellers and Buyer. CRNB's obligations under the Note
shall be secured by the following in form and substance
reasonably acceptable to counsel for the Sellers and
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Buyer: (i) a Security Agreement (the
"Security Agreement"); (ii) mortgages or deeds of trust
on the Owned Real Property being purchased from the
Sellers; (iii) UCC financing statements covering the
Acquired Assets being purchased from the Sellers; and
(iv) a Pledge Agreement for a pledge covering all
membership interests in CRNB.
10. Section 4.2.5 of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
4.2.5 One Hundred Ten Thousand Dollars ($110,000) of
the Purchase Price (the "KPLS Holdback") shall be
retained by the Buyer as consideration for the
increase in the purchase price payable for the land
for the KPLS tower site (the "Vander Eyk Property").
In the event that the purchase price paid by Buyer for
the Vander Eyk Property (the "Vander Eyk Purchase
Price") is less than Three Million Six Hundred Eighty
Thousand Eight Hundred Dollars ($3,680,800), Buyer
shall remit to Sellers from the KPLS Holdback one-half
of the amount that the Vander Eyk Purchase Price is
less than Three Million Six Hundred Eighty Thousand
Eight Hundred Dollars ($3,680,800), up to a maximum of
the amount of the KPLS Holdback, and the balance of
the KPLS Holdback, if any, shall remain the property
of Buyer and shall be considered a reduction in the
Purchase Price. In the event that the Vander Eyk
Purchase Price is Three Million Six Hundred Eighty
Thousand Eight Hundred Dollars ($3,680,800) or more,
the entire KPLS Holdback shall remain the property of
Buyer
11. The parties agree that the amount to be deposited in escrow
pursuant to the terms of the Indemnity Escrow Agreement attached as Exhibit C to
the Purchase Agreement will be One Million Three Hundred Thousand Dollars
($1,300,000), and that if such Indemnity Escrow is funded following the first
anniversary of the Closing Date, Six Hundred and Fifty Thousand Dollars
($650,000) will be the amount of the deposit.
12. Article 5 of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
At Closing, the parties shall enter into a Consulting
and Non-Competition Agreement (the "Non-Competition
Agreement") in the form attached as Exhibit 1 to the
Second Amendment to the Purchase Agreement, pursuant to
which Buyer shall pay to Xxxxxxxxxxx X. Xxxx the sum of
Seven Hundred and Fifty Thousand Dollars ($750,000)
according to the terms and conditions set forth herein.
13. Section 6.19 of the Purchase Agreement is hereby
deleted in its entirety.
14. The second clause of Section 7.1 of the Purchase Agreement
is hereby amended and restated in its entirety as follows:
Buyer, or its designee which acquires the Acquired Assets (other
than the Licenses), is, or will be at the time of Closing,
qualified to
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do business in the States of California, Colorado, Illinois,
Kansas, Minnesota, Pennsylvania and Wisconsin;
15. Sections 6.19, 7.3, 11.2(b) and 11.2(f), of the Purchase
Agreement are hereby deleted in their entirety:
Except as expressly provided herein, all of the terms and provisions of the
Purchase Agreement, as amended, shall remain in full force and effect. Unless
otherwise defined, all capitalized terms herein shall have the meaning ascribed
to them in the Purchase Agreement
IN WITNESS WHEREOF, the parties hereto, by their properly authorized
representatives, have caused this Second Amendment to Purchase Agreement to be
executed as of the day and date first written above.
Children's Broadcasting Corporation Catholic Radio Network, LLC
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Chicago, Inc. WAUR-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Dallas, Inc. KAHZ-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Denver, Inc. KKYD-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Kansas City, Inc. KCNW-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
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Children's Radio of Los Angeles, Inc. KPLS-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Milwaukee, Inc. WZER-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Minneapolis, Inc. WWTC-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of New York, Inc. WJDM-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Philadelphia, Inc. WPWA-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
Children's Radio of Phoenix, Inc. KIDR-AM, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxx By: /s/ Xxxxxxxxxxx X. Xxxx
-------------------------- -------------------------
Its: President & CEO Its: President & CEO
-------------------------- -------------------------
(Signature Page for Second Amendment to Purchase Agreement)
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