Exhibit 2.8
SECOND AMENDMENT TO ASSET PURCHASE AND ESCROW AGREEMENT
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THIS AMENDMENT ("Second Amendment") dated and effective as of the 1st day
of June, 1997, by and between Great Xxxxx Broadcasting, Ltd., a Pennsylvania
limIted partnership ("Seller"), and Nassau Broadcasting Partners, LP., a
Delaware limited partnership ("Buyer").
STATEMENT OF FACTS
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1. Buyer and Seller entered into an Asset Purchase Agreement dated as of
August 30, 1996 ("Agreement") pursuant to which seller agreed to sell certain
radio stations licensed to Trenton, New Jersey to Buyer and simultaneously
therewith made a down payment of $750,000 (the "Escrow Amount") toward the
purchase price under the Agreement and an Escrow Agreement with respect to the
Escrow Amount.
2. On January 17, 1997, Buyer and Seller entered into an Amendment to Asset
Purchase Agreement and Escrow Agreement (the "First Amendment"), pursuant to
which the Escrow Agent released the Escrow Amount to Seller, and Buyer deposited
an additional $750,000 (the "Additional Escrow Amount") with the Escrow Agent.
3. As of the date of this Second Amendment. Buyer has paid to Seller the
Escrow Amount, the Earnings Adjustments and the Advances.
4. At the request of Buyer, Buyer and Seller have agreed to further amend
the Agreement and the Escrow Agreement. For the purpose of this Second
Amendment, capitalized terms shall have the meanings ascribed to them in the
Agreement and the First Amendment, unless otherwise defined.
5. Buyer and Seller have this day entered into a Local Marketing Agreement
("LMA"), as part of the consideration for this Second Amendment.
NOW, THEREFORE, in consideration of the sum of Ten ($10.00) Dollars, paid
by Buyer to Seller, and for other good and valuable consideration, the mutual
receipt and mutual sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Section 2.2 of the First Amendment of the Agreement shall be deleted In
its entirety and replaced by the following:
2.2 Xxxxxxx Money Deposit. Upon the execution of this Second
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Amendment, Escrow Agent shall release the Additional Escrow Amount to
Seller, and such amount shall be credited toward the Purchase Price.
Accrued interest on the Escrow Amount for the period from August 30, 1996
through January 17, 1997 and the Additional Escrow Amount shall also be
credited on account of the Purchase Price. The Escrow Agent shall provide a
definitive accounting thereof to the parties.
2. Section 2.3(b) of the Agreement shall be deleted and replaced with the
following:
2.3 Method of Payment of Purchase Price. The Purchase Price shall be
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paid as follows:
2.3(a) Additional Deposits. Pursuant to the First Amendment,
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Buyer has released the Escrow Amount and has paid the Advances and
Earnings Adjustments to Seller. Pursuant to Section 1 of this Second
Amendment, Buyer has released the Additional Escrow Amount to Seller.
In addition, Buyer shall deliver to Seller the following payments
("Additional Deposits") in one or more certified or cashier's checks
or wire transfers payable as directed by Seller.
$3,000,000 on May 31, 1997;
$2,000,000 on September 30, 1997:
$4,000,000 on December 31, 1997:
$1,500,000 on July 1, 1998.
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2.3(b) Closing. Buyer shall deliver to Seller at Closing one or
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more certified or cashier's checks or wire transfers payable as
directed by Seller in the aggregate amount of Two Million Five Hundred
Thousand Dollars ($2,500,000).
2.3(c) Balance of the Purchase Price. In addition to the amounts
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set forth in 2.3(a) and (b), Buyer shall pay to Seller an aggregate of
Five Million Dollars ($5,000,000) (the "Additional Amount"), payable
One Million Dollars ($1,000,000) on January 31, 1999 and Four Million
Dollars ($4,000,000) on January 31, 2000, plus interest of 6% per
annum from the Closing Date to the date of payment. At Closing, Buyer
shall deliver to Seller a promissory note in the form attached hereto
as Exhibit A providing for the payment of the Additional Amount, plus
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interest of 6% per annum (the "Promissory Note"). Buyer shall use its
best efforts to obtain the consent of its primary lender, if any, to
grant Seller a subordinated security interest in the Assets to secure
payment of the Promissory Note, such security interest to be
subordinate only to Buyer's primary lender.
2.3(d) Payment of Purchase Price. All amounts set forth in this
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Section 2 shall be credited toward the Purchase Price when paid and
shall constitute full payment of the Purchase Price.
3. Section 10.1 of the Agreement shall be deleted and replaced by the
following:
10.1 Closing Date and Real Property Transfer Date. The Closing of the
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transactions contemplated herein, other than for the transfer of the Real
Property, shall be held on a date and time, specified by Buyer in writing
to Seller, which is on or before January 31, 1999 ("New Closing Date"). The
Real Property Transfer Date shall be January 31, 2000 (the "Real Property
Transfer Date").
4. Sections 10.4(a)(i) of the Agreement shall be deleted and Section
10.4(a)(ii) of the Agreement shall be deleted and replaced with the following:
(ii) Two Million Five Hundred Thousand Dollars ($2,500,000), by bank,
cashier's check, certified check or wire transfer at Seller's election
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(provided all Additional Deposits shall have been received by Seller
timely, or any delay or default waived by Seller in writing).
5. Upon execution of this Second Amendment, all amounts held by the Escrow
Agent pursuant to the Escrow Agreement will be released. Pursuant to the Section
3 of the Escrow Agreement, the Escrow Agreement will terminate and Escrow Agent
shall have no further responsibility pursuant to the Escrow Agreement and no
liability to the Buyer and the Seller.
6. References in the Agreement, as amended, to Liquidated Damages under
Section 2.2 shall mean new Section 2.5 of this Second Amendment. Section 2.5 of
the Agreement and the First Amendment shall be deleted and replaced with the
following:
2.5 Liquidated Damages. Buyer acknowledges that the Escrow Amount. the
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Additional Escrow Amount, the Adjustments, the Advances and the Additional
Deposits have been paid and are being paid as conditions of Buyer obtaining
extensions of the Closing Date of the Agreement. Buyer shall not seek to
obtain any portion of such amounts delivered to Seller, except that Buyer
may seek recovery of such amounts if Seller intentionally and willfully
refuses or fails to deliver any documents it is required to deliver at the
Closing or to discharge any of its Closing Obligations. In the event
termination of the Agreement by Seller as the result of failure of a
condition set forth in Section 14.1(d) of the Agreement or failure by Buyer
to fulfill its obligations under this Second Amendment, and Seller is not
in breach of its obligations and representations under this Second
Amendment and the Agreement, Seller shall be entitled to keep, as
liquidated damages and not as a penalty, all of the Escrow Amount, the
Additional Escrow Amount, the Adjustments, the Advances and the Additional
Deposits paid up until the time of termination of the Agreement. The
parties agree that such amounts constitute reasonable and just compensation
considering all the circumstances existing on the date of this Second
Amendment, including the relationship of the sums to the range of harm to
Seller that could reasonably be anticipated and the anticipation that proof
of actual damages would be very difficult or impossible to establish. In
placing their initials at the place provided below, Buyer and Seller each
specifically confirms the accuracy of the statements made above and the
fact that each was represented by
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counsel who explained the consequences of this liquidated damages provision
at the time this Second Amendment was made.
SELLER INITIAL HERE [INITIALS]
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BUYER INITIAL HERE [INITIALS]
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7. Buyer acknowledges and agrees that the representations and warranties
of Seller contained in Sections 4.2(b) and 4.3 of the Agreement have been
satisfied as of the date of this Second Amendment and shall be of no further
force or effect.
8. Buyer and Seller acknowledge and agree that Section 11.1 of the
Agreement is void and shall be of no further force or effect.
9. Buyer, as Broker under the LMA agrees not to alter the format of the
Stations until January 1, 1998 and may do so at that time if it has made all
payments through the $4,000,000 payment to be made on December 31, 1997.
10. Buyer shall pay to Seller reasonable counsel fees for work necessitated
by Buyer's failure to close on May 31, 1997. Buyer shall not be required to make
such payment until Seller has documented the work for which it seeks fees by
providing sufficient detail of the services of its attorneys for which it seeks
payment from Buyer.
11. Buyer and Seller acknowledge that the FCC has approved the sale of the
Stations and extended its approval through May 31, 1997. Any further extensions
of the FCC approval shall be the sole responsibility of Buyer, and Seller agrees
to use its reasonable best efforts to assist Buyer in obtaining any further
extension. In the event that an extension of FCC approval cannot be obtained
through January 31, 1999, Buyer shall be responsible for the recommencement of
the application process and shall pay
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all fees of Seller and its legal counsel incurred in utilizing its best efforts
to assist Buyer in obtaining said approval.
12. Solely in the event that Buyer and Seller are unable to close on the
purchase and sale of the Stations on the New Closing Date by reasons of the
inability to obtain the consent of the FCC or other future required governmental
approval, through no fault of Buyer and if Buyer is otherwise in full compliance
with the Agreement and this Second Amendment, then the parties agree as follows:
(a) Seller shall list the Stations for sale and make a good faith
effort to sell the Stations to a third party for a period of three years
following the New Closing Date.
(b) Seller shall accept a bona-fide offer from a third-party purchaser
to purchase the Stations from Seller at not less than 85% of the fair
market value as determined by a nationally recognized media broker selected
by Seller, in its sole discretion, or an amount approved by Buyer within
the time period specified in this Section 12(a), above, provided that
Seller need not accept a bona fide offer if fair market value plus amounts
paid by Buyer and credited toward the Purchase Price do not equal Twenty
Million Dollars ($20,000,000).
(c) Upon the closing of the sale of the Stations to the third-party
purchaser, Seller shall reimburse Buyer for amounts, not to exceed the sum
of the Deposit and the Additional Deposits. received by Seller in excess if
any of the product of Twenty Million Dollars ($20,000,000) multiplied by a
fraction not less than 1/1, the numerator of which is the consumer price
index for all urban consumers published by the Bureau of Labor Statistics
(the "CPI-U") for January 1999 and the denominator is
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the CPI for March 1997, over the aggregate of (i) amounts paid by Buyer and
credited toward the Purchase Price pursuant to this Second Amendment and
(ii) the amount realized (net of all expenses and costs) by Seller from the
third-party purchaser pursuant to Section 13(b) above. Attached hereto as
Exhibit B is an example illustrating the application of this Section 12.
13. This Second Amendment may be signed in any number of counterparts with
the same effect as if the signature to each counterpart were on the same
instrument.
14. Except as modified by this Second Amendment, the Agreement and the
First Amendment, and all of the covenants, agreements, terms, provisions and
conditions therein shall remain in full force and effect. The covenants,
agreements, terms, provisions and conditions contained in this Second Amendment
shall bind and inure to the benefit of the parties hereto and their respective
successors, and, except as otherwise provided in the Agreement and the First
Amendment, as modified in this Second Amendment, their respective assigns.
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IN WITNESS WHEREOF, this Second Amendment has been duly executed by the
parties hereto as of the date first above written.
GREAT XXXXX BROADCASTING, LTD.
By: GREAT XXXXX BROADCASTING, INC.
Its General Partner
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
NASSAU BROADCASTING PARTNERS, L.P.
By: Nassau Broadcasting Partners, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxxxx, Xx., President
Acknowledged and Agreed:
EIZEN, FINEBURG & XxXXXXXX, P.C.,
as Escrow Agent
By: /s/ Xxxxxxx X. Xxxxxxxx, Treasurer
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