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EXHIBIT 10.9
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (the
"Agreement") is entered into as of April 23, 1998 by and among STC BROADCASTING
OF VERMONT, INC., a Delaware corporation ("STCBV"), TUSCALOOSA BROADCASTING,
INC., a Maryland corporation ("Tuscaloosa"), WPTZ LICENSEE, INC., a Maryland
corporation ("WPTZ Licensee"), and WNNE LICENSEE, INC., a Maryland corporation
("WNNE Licensee") (Tuscaloosa, WPTZ Licensee and WNNE Licensee, collectively,
the "Sinclair Sellers").
WHEREAS, STCBV and the Sinclair Sellers are parties to that
certain Asset Purchase Agreement dated as of February 3, 1998 (the "Purchase
Agreement") pursuant to which STCBV has agreed to buy, and the Sinclair
Sellers have agreed to sell (i) the assets of television broadcast station WPTZ
(TV), Channel 5, North Pole, New York ("WPTZ"), (ii) certain assets and rights
relating to television broadcast station WFFF-TV, Channel 44, Burlington,
Vermont ("WFFF"), and (iii) the assets of television broadcast station WNNE-TV,
Channel 00, Xxxxxxxx, Xxxxxxx ("XXXX") (WPTZ, WNNE and WFFF are collectively
referred to herein as, the "Stations"), all subject to the terms described in
the Purchase Agreement;
WHEREAS, STCBV and the Sinclair Sellers have made certain
modifications to the Purchase Agreement pursuant to a First Amendment to Asset
Purchase Agreement dated April 16, 1998;
WHEREAS, STCBV and the Sinclair Sellers desire to make certain
additional modifications to the Purchase Agreement; and
WHEREAS, all capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Purchase
Agreement.
NOW, THEREFORE, the parties set forth above, intending to be
legally bound by this Agreement, agree as follows:
1. Section 2.6. of the Purchase Agreement shall be
amended to read in its entirety as follows:
"2.6. Proration Amount
Within ninety (90) days after the Transfer Date,
Buyer shall deliver to Sellers in writing and in reasonable detail a good faith
determination of the adjustments to the
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Base Purchase Price customary in television broadcast station transactions for
Proration Items (the "Proration Amount") to reflect that all Proration Items of
the Stations shall be apportioned between Buyer and Sellers in accordance with
the principle that Sellers shall receive the benefit of all revenues, refunds,
deposits (other than deposits for Program Contracts which shall be prorated
based on the percentage of the term that the film or program was aired on the
Stations before the Transfer Date and the percentage available to be aired on
and after the Transfer Date) and prepaid expenses, and shall be responsible for
all expenses, costs and liabilities allocable to the conduct of the businesses
or operations of the Stations for the period prior to the Transfer Date, and
Buyer shall receive the benefit of all revenues, refunds, deposits (other than
deposits for Program Contracts which shall be prorated based on the percentage
of the term that the film or program was aired on the Stations before the
Transfer Date and the percentage available to be aired on and after the
Transfer Date) and prepaid expenses, and shall be responsible for all expenses,
costs and liabilities allocable to the conduct of the businesses or operations
of the Stations from and after the Transfer Date; provided, however, that there
shall be no adjustment or proration for any negative or positive net trade
balance except to the extent that the negative trade balance (i.e., the amount
by which the value of goods or services to be received is less than the value
of any advertising time remaining to be run) for any Station exceeds Fifty
Thousand Dollars ($50,000) as of the Transfer Date; provided, further, that if
there shall be a Non-License Transfer, then prorations and adjustments for
Proration Items related to the License Assets shall be made pursuant to this
Section 2.6. as of the Closing Date. Determinations pursuant to this Section
2.6. shall be made in accordance with generally accepted accounting principles
consistently applied for the period prior to the Non-License Transfer Date or
the Closing Date, as applicable.
Sellers shall assist Buyer in making the determination of the
Proration Amount, and Buyer shall provide Sellers with reasonable access to the
properties, books and records relating to the Stations for the purpose of
determining the Proration Amount. Sellers shall have the right to review the
computations and workpapers used in connection with Buyer's preparation of the
Proration Amount. If Sellers disagree with the amount of the Proration Amount
determined by Buyer, Sellers shall so notify Buyer in writing within thirty
(30) days after the date of receipt of Buyer's Proration Amount, specifying in
detail any point of disagreement; provided, however, that if Sellers fail to
notify Buyer in writing of Sellers' disagreement within such thirty (30) day
period, Buyer's determination of the Proration Amount shall be final,
conclusive and binding on Sellers and Buyer. After the receipt of any notice
of disagreement, Buyer and Sellers shall negotiate in good faith to resolve any
disagreements regarding the Proration Amount. If any such disagreement cannot
be resolved by Sellers and Buyer within thirty (30) days after Buyer has
received notice from Sellers of the existence of such disagreement, Buyer and
Sellers shall jointly select a nationally recognized independent public
accounting firm (the "Accounting Firm"), to review Buyer's determination of the
Proration Amount and to resolve as soon as possible all points of disagreement
raised by Sellers. All determinations made by the Accounting Firm with respect
to the Proration Amount shall be final, conclusive and binding on Buyer and
Sellers. The fees and expenses of the Accounting Firm incurred in connection
with any such determination shall be shared one-half by Buyer and one-half by
Sellers.
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If upon the final determination of the Proration
Amount Buyer is obligated to pay Sellers such amount, then Buyer shall pay such
amount to Sellers in cash, within two (2) business days following the final
determination of the Proration Amount. If upon the final determination of the
Proration Amount Sellers are obligated to pay Buyer such amount, then Sellers
shall pay such amount to Buyer in cash within two (2) business days following
the final determination of the Proration Amount. Any amounts paid pursuant to
this Section 2.6. shall be by wire transfer of immediately available funds for
credit to the recipient at a bank account identified by such recipient in
writing.
Buyer and Sellers agree that prior to the date of the
determination of the Proration Amount pursuant to this Section 2.6. (by the
Accounting Firm or otherwise), neither party will destroy any records
pertaining to, or necessary for, the determination of the Proration Amount.
Each Seller hereby appoints Xxxxxxxx as its
attorney-in-fact with power and authority to act for and on behalf of each
Seller in connection with all matters arising under this Section 2.6. Buyer
shall be entitled to rely on such appointment and treat Xxxxxxxx as the duly
appointed attorney-in-fact of each Seller."
2. Reference to "Final Proration Amount" in Section
8.4.4. of the Purchase Agreement is hereby changed to "Proration Amount."
3. Except as expressly modified hereby, all other terms
and conditions of the Purchase Agreement shall remain in full force and effect
in accordance with their terms.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Second Amendment to Asset Purchase Agreement, or has caused this Second
Amendment to Asset Purchase Agreement to be duly executed and delivered in its
name on its behalf, all as of the day and year first above written.
STC BROADCASTING OF VERMONT, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
TUSCALOOSA BROADCASTING, INC.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Treasurer and Secretary
WPTZ LICENSEE, INC.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Treasurer and Secretary
WNNE LICENSEE, INC.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Treasurer and Secretary
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