AGREEMENT TO AMEND
THIS AGREEMENT TO AMEND is made and entered into this 10th day of
January, 1997 by and among Tsunami Communications of Cincinnati, Inc., an Ohio
corporation ("Buyer"), WGRR Limited Partnership, a Delaware limited partnership
("Seller"), The Xxxxxx Group, Inc., a Delaware corporation and general partner
of Seller ("DGI"), and American Radio Systems Corporation, a Delaware
corporation ("ARS").
RECITALS
WHEREAS, Buyer (as assignee of Tsunami Communications, Inc.), Seller
and DGI have entered into an Asset Purchase Agreement dated August 29, 1996 (the
"Agreement"), pursuant to which Seller has agreed to sell and Buyer has agreed
to purchase, certain assets and assume certain obligations associated with the
ownership and operation of radio station WGRR(FM), Hamilton, Ohio (the
"Station");
WHEREAS, Buyer and ARS have agreed that Buyer shall merge with and into
ARS pursuant to an agreement and Plan of Merger dated as of __________, 199__
(the "Merger"); and
WEREAS, ARS, Seller and DGI desire to amend the Agreement as of the
consummation of the Merger as set forth herein, and to acknowledge and approve
the Merger with respect to the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Seller and DGI hereby (i) consent to the assignment of the Agreement
by Tsunami Communications, Inc. to Buyer, and (ii) acknowledge and assent to the
Merger insofar as ARS shall thereby assume and succeed to all of the rights and
obligations of Buyer thereunder.
2. Seller, DGI and ARS hereby agree that forthwith upon consummation of
the Merger, they shall join in to amend and restate the Agreement substantially
in accordance with the following terms:
a). ARS shall be the "Buyer", as defined in the Agreement, the
Escrow Agreement (as defined in the Agreement), and all other ancillary
agreements and documents;
b). The last sentence of Section 4.1 of the Agreement shall be
amended to read in its entirety as follows:
"The Closing shall be held in the offices of Buyer or at such
place and in such manner as the parties hereto may agree."
c). The date of September 15, 1996 as set forth in the first line
of Section 5.2 of the Agreement shall be changed to January 10, 1997. In
addition, a provision shall be added acknowledging that the parties shall
withdraw the FCC License assignment application previously filed pursuant to the
terms of the Agreement and given File No. XXXX-000000XX prior to the filing
provided for in Section 5.2.
d). Section 6.1 of the Agreement shall be amended to the effect
that the Buyer is a corporation formed under the laws of the State of Delaware
and is qualified to do business in the State of Ohio.
e). Section 10.1 of the Agreement shall be amended by adding a
subsection (e) to the second sentence thereof to the effect that an additional
exception to the general confidentiality provisions shall be when and in the
event disclosure is required by applicable securities laws.
f). Section 13.3 of the Agreement shall be amended to the effect
that Buyer shall be solely responsible for FCC and Xxxx-Xxxxx-Xxxxxx ("HSR")
Pre-Merger Notification filing fees in connection with the transaction, and that
Buyer shall reimburse Seller or DGI for all expenses, including reasonable
attorneys' fees, incurred by Seller in connection with the preparation of, or
requests for information in response to, the HSR Pre-Merger Notification filed
with respect to the Agreement.
g). In Section 17.9 of the Agreement, the address for notices to
Buyer shall be amended as follows:
"To Buyer: American Radio Systems Corporation
Attention: Xxxxxx X. Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Copy to: Xxxxxxx X. Xxxxxx, Esq.
American Radio Systems Corporation
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000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
The Agreement shall remain unmodified in all other respects.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
TSUNAMI COMMUNICATIONS OF
CINCINNATI, INC.
By: _____________________________
Xxxxxxx X Xxxxxxxx
President
WGRR LIMITED PARTNERSHIP
By: ___________________________
Xxxxxxx Xxx Xxxxxx
President, The Xxxxxx Group, Inc.
General Partner
THE XXXXXX GROUP, INC.
By: ____________________________
Xxxxxxx Xxx Xxxxxx
President
AMERICAN RADIO SYSTEMS
CORPORATION
By: ___________________________
Xxxxxx X. Xxxxx
President
ak/agreement to amend WGRR
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