AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
This Amendment No.1 dated as of January 21, 1997 ("Amendment
No. 1") to the Asset Purchase Agreement (the "Asset Purchase Agreement") dated
as of October 15, 1996 between Secret Communications Limited Partnership, a
Delaware limited partnership ("Seller"), and SFX Broadcasting, Inc., a Delaware
corporation ("Buyer").
W I T N E S S E T H :
WHEREAS, Seller and Buyer each desire to amend the Asset
Purchase Agreement and enter into certain other agreements relating to the
Asset Purchase Agreement and the transactions contemplated thereby;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, it is hereby agreed between Seller and Buyer
as follows:
1. The first recital of the Asset Purchase Agreement
is hereby amended in its entirety to read as follows:
"WHEREAS, Seller is the licensee of and operates radio
stations WFBQ-FM, WRZX-FM and WNDE-AM in Indianapolis, Indiana and
WDVE-FM and WXDX-FM in Pittsburgh, Pennsylvania (the "Owned Stations")
and, upon the consummation of the transactions contemplated by the
Asset Exchange Agreement (the "Exchange Agreement") dated as of May
31, 1996 by and among Seller, Nationwide Communications, Inc. and
Entercom (as defined below), Seller will become the licensee of and
have the right to operate radio stations WDSY-FM and WJJJ-FM (formerly
WNRQ-FM) in Pittsburgh, Pennsylvania (the "Purchased Stations") (the
Owned Stations and the Purchased Stations being collectively referred
to herein as the "Stations");"
2. The third recital of the Asset Purchase Agreement
is hereby deleted.
3. Subsection (a) of Section 1.1 of the Asset
Purchase Agreement is hereby amended in its entirety to read as
follows:
"(a) The broadcast licenses for the Stations (including the right to
use the call letters "WFBQ-FM", "WRZX-FM", "WNDE- AM", "WDVE-FM",
"WXDX-FM", "WDSY-FM" and "WJJJ-FM") issued
by the FCC and all other Governmental Permits listed in
Schedule 2.8;"
4. Section 1.3 of the Asset Purchase Agreement is
hereby amended in its entirety to read as follows:
"1.3. Purchase Price. The purchase price for the
Purchased Assets (the "Purchase Price") shall be equal to
$255,000,000."
5. Section 1.6 (a) of the Asset Purchase Agreement is
hereby amended in its entirety to read as follows:
"(a) The Closing shall be consummated on a date to be selected by the
Buyer and agreed upon by the Seller, which date shall be no later than
July 15, 1997 if the conditions to Closing set forth in Sections 6.4,
6.5, 6.8, 7.4, 7.5 and 7.6 of this Agreement have been satisfied as of
or prior to July 15, 1997; provided, however, that if any of the
conditions set forth in Sections 6.4, 6.5, 6.8, 7.4, 7.5 or 7.6 of
this Agreement have not been satisfied as of July 15, 1997 the Closing
shall be held on the fifth business day after all of such conditions
have been satisfied. The Closing shall be held at 10:00 A.M., local
time, at the offices of Buyer, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or at such other place or time as shall be agreed upon by
Buyer and Seller (the date and time on which the Closing is actually
held being hereinafter referred to as the "Closing Date")."
6. Section 2.1 of the Asset Purchase Agreement is
hereby amended in its entirety to read as follows:
"2.1. Organization of Seller. Seller is a limited partnership
duly organized, validly existing and in good standing under the laws
of the State of Delaware and is duly qualified and in good standing as
a foreign limited partnership in the States of Indiana and
Pennsylvania. Seller has full partnership power and authority, or will
have full partnership power and authority upon consummation of the
transactions contemplated by the Exchange Agreement (the "Exchange
Transaction"), to own or lease and to operate and use the Purchased
Assets and to carry on the business of the Stations as now conducted."
7. Section 5.3 of the Asset Purchase Agreement is
hereby amended in its entirety to read as follows:
"5.3. Covenant Not to Compete. In furtherance of the sale
of the Purchased Assets to Buyer hereunder by
- 2 -
virtue of the transactions contemplated hereby and more effectively to
protect the value and goodwill of the Stations, Seller covenants and
agrees that it will not directly or indirectly (whether as principal,
agent, independent contractor, partner or otherwise) own, manage,
operate, control or otherwise carry on for a period beginning on the
Closing Date and ending on the second anniversary thereafter, a radio
station business in the Indianapolis, Indiana or Pittsburgh,
Pennsylvania radio markets, each as determined by The Arbitron
Company.
Notwithstanding the foregoing, nothing set forth in Section
5.5 shall prohibit Seller from owning not in excess of 25% in the
aggregate of any class of capital stock of any corporation if such
stock is publicly traded and listed on any national or regional stock
exchange or quoted on the Nasdaq Stock Market."
8. Section 9.1(a)(iii) of the Asset Purchase
Agreement is hereby deleted.
9. Section 9.1(a)(v) of the Asset Purchase Agreement
is hereby amended in its entirety to read as follows:
"(v) by Buyer or Seller (A) if the Closing shall not have occurred on
or prior to July 15, 1997 and the conditions to Closing set forth in
Sections 6.4, 6.5, 6.8, 7.4, 7.5 and 7.6 have been satisfied on or
prior to such date or (B) if the Closing shall not have occurred on or
before September 30, 1997;"
10. Section 10.13 of the Asset Purchase Agreement is
hereby amended by deleting the definitions of "Aggregate 1996
Broadcast Cash Flow of the Stations", "Broadcast Cash Flow",
"Escrow Agent" and "Escrow Agreement."
11. All references to radio stations WTAM-AM and WLTF- FM in
Cleveland, Ohio (the "Cleveland Stations") and any information relating thereto
shall be deemed to be deleted from the Schedules to the Asset Purchase
Agreement.
12. The Escrow Agreement dated as of October 15, 1996
among Buyer, Seller and The First National Bank of Chicago, as
escrow agent, is hereby terminated.
13. The parties agree that if, on or before March 31, 1998,
Seller consummates the sale of all of the assets, business and property of the
Cleveland Stations to a non-affiliated third party for a purchase price of less
than $45,000,000, Buyer will pay to Seller by wire transfer of immediately
available funds
- 3 -
within three business days of receipt of notice from Seller (in the form
contemplated by the Asset Purchase Agreement and specifying the appropriate
wire transfer instructions) of the consummation of such sale the difference
between $45,000,000 and the actual purchase price paid to Seller in respect of
the Cleveland Stations; provided, however, that in no event shall the liability
of Buyer pursuant to this Section 13 exceed $5,000,000. For purposes of this
Section 13, "purchase price" shall include cash and non-cash consideration,
including securities, property and the value of any noncompetition or similar
agreements benefitting Seller, and non-cash consideration shall be valued at
its fair market value on the date of consummation of the sale of the Cleveland
Stations.
14. Simultaneously with the execution of this Amendment No.
1, Buyer agrees to pay to Seller $10,000,000 in cash by wire transfer of
immediately available funds to the account specified by Seller. In addition,
simultaneously with the execution of this Amendment No. 1, Buyer is delivering
to Seller a letter of credit in the form attached hereto as Exhibit A in the
sum of $5,000,000 issued by Chase Manhattan, N.A. (the "Letter of Credit").
Pursuant to the terms of the Letter of Credit, Seller shall have the right on
or after May 30, 1997 to draw the amount of $5,000,000 on the Letter of Credit;
provided, however, that Seller agrees that it will not draw upon the Letter of
Credit if, prior to May 30, 1997, Buyer delivers to the account specified by
Seller by wire transfer of immediately available funds $5,000,000 in cash in
satisfaction of Buyer's obligation to cause $5,000,000 to be paid to Seller
pursuant to this sentence. If the Closing (as defined in the Asset Purchase
Agreement) occurs, the $15,000,000 to be paid to Seller pursuant to this
Section 14 shall be credited towards the Purchase Price (as defined in the
Asset Purchase Agreement) to be paid to Seller by Buyer at the Closing.
15. Each of Buyer and Seller covenant and agree to file with
the Federal Trade Commission and the Antitrust Division of the Department of
Justice within 10 days of the date hereof the notifications and other
information required to be filed by such party under the Improvements Act (as
defined in the Asset Purchase Agreement), or the rules and regulations
promulgated thereunder, with respect to this Amendment No. 1.
16. This Amendment No. 1 shall be governed by and
construed in accordance with the internal laws (as opposed to the
conflict of laws provisions) of the State of Illinois.
17. This Amendment No. 1 may be executed in one or
more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same
- 4 -
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties and delivered to each of Seller and Buyer.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed as of the day and year first above written.
SECRET COMMUNICATIONS
LIMITED PARTNERSHIP
By: Broadcast Alchemy, L.P.,
a General Partner
By: Lane Broadcasting, Inc.
Its: General Partner
By: /s/
____________________________
Its: Secretary & General Counsel
____________________________
SFX BROADCASTING, INC.
By: ___________________________
Its: ___________________________
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties and delivered to each of Seller and Buyer.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be executed as of the day and year first above written.
SECRET COMMUNICATIONS
LIMITED PARTNERSHIP
By: Broadcast Alchemy, L.P.,
a General Partner
By: Lane Broadcasting, Inc.
Its: General Partner
By: ____________________________
Its: ____________________________
SFX BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxx
___________________________
Its: EVP
___________________________
- 5 -
EXHIBIT A
FORM OF LETTER OF CREDIT
[CHASE LOGO]
THE CHASE MANHATTAN BANK
Global Trade Operations
X.X. Xxx 00, Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx, XX 00000-0000
ISSUE DATE: JANUARY 22, 1997
L/C NO: P-268255
APPLICANT:
************* DIRECT ************* SFX BROADCASTING, INC.
000 XXXX 00XX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
SECRET COMMUNICATIONS LIMITED AMOUNT: USD 5,000,000.00
PARTNERSHIP (FIVE MILLION AND 00/100
000 XXXXXX XXXXXX, XXXXX 0000 XXXXXX XXXXXX DOLLARS)
XXXXXXXXXX, XXXX 00000
GENTLEMEN:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT NO. P-268255 IN
YOUR FAVOR FOR AN AGGREGATE AMOUNT NOT TO EXCEED THE AMOUNT INDICATED ABOVE,
EXPIRING AT OUR COUNTERS IN NEW YORK WITH OUR CLOSE OF BUSINESS ON
JUNE 10, 1997.
THIS LETTER OF CREDIT IS AVAILABLE WITH THE CHASE MANHATTAN BANK, NEW YORK
AGAINST PRESENTATION OF YOUR DRAFT AT SIGHT DRAWN ON THE CHASE MANHATTAN
BANK, NEW YORK WHEN ACCOMPANIED BY THE DOCUMENTS INDICATED HEREIN.
BENEFICIARY'S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICERS
READING: "THE AMOUNT OF THIS DRAWING USD......... UNDER THE CHASE MANHATTAN
BANK LETTER OF CREDIT NUMBER P-268255 REPRESENTS FUNDS TO BE PAID TO US
PURSUANT TO THE TERMS OF A CERTAIN ASSET PURCHASE AGREEMENT DATED OCTOBER 15,
1996, AS AMENDED, BY AND BETWEEN SECRET COMMUNICATIONS LIMITED PARTNERSHIP, AND
SFX BROADCASTING, INC."
ORIGINAL OF THIS LETTER OF CREDIT MUST ACCOMPANY ALL DRAWINGS.
ALL DRAFTS MUST INDICATE: "DRAWN UNDER THE CHASE MANHATTAN BANK, NEW YORK
LETTER OF CREDIT NO. P-268255."
ALL CORRESPONDENCE AND ANY DRAWINGS PRESENTED IN CONNECTION WITH THIS LETTER
OF CREDIT MUST ONLY BE PRESENTED TO US AT THE CHASE MANHATTAN BANK,
55 WATER ST., 00XX XXXXX, XXXX 0000, XXX XXXX, XXX XXXX 00000, ATT: STANDBY
LETTER OF CREDIT DEPARTMENT. CUSTOMER INQUIRY NUMBERS ARE (000) 000-0000 AND
(000) 000-0000.
EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, THIS CREDIT IS SUBJECT TO THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS, 1993 REVISION, ICC
PUBLICATION NO. 500.
