AMENDMENT TO ASSET PURCHASE AGREEMENT
AND TIME BROKERAGE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT AND TIME BROKERAGE AGREEMENT
("Amendment"), dated as of November 27, 1996, by and between ZIMCO, INC., a
Missouri corporation ("Seller"), and EMMIS BROADCASTING CORPORATION, an Indiana
corporation ("Buyer").
W I T N E S S E T H : That
WHEREAS, Seller and Buyer entered into an Asset Purchase Agreement, dated
as of October 31, 1996 (the "Purchase Agreement"), pertaining to the sale of the
Stations (as defined in the Purchase Agreement);
WHEREAS, Seller and Buyer are parties to a Time Brokerage Agreement, dated
as of October 31, 1996 (the "TBA"), which permits Buyer, beginning on December
1, 1996, to provide programming to be transmitted on the Stations pursuant to
the terms and conditions of the TBA; and
WHEREAS, each of Seller and Buyer desires to amend the Purchase Agreement
and the TBA as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, it is hereby agreed as follows:
1. Article III of the TBA. Article III of the TBA is hereby deleted in
its entirety and replaced with the following:
ARTICLE III
Broker Compensation
3.1 Compensation to Broker.
(a) Licensee may broadcast up to three (3) hours of Licensee
Programming per week pursuant to Section 1.2 hereof without any
compensation to Broker. If at any time during the Term, or any subsequent
term, of this Agreement the Stations shall fail for any reason, other than
as expressly provided in Sections 3.1(b) and (c) below, to carry Brokered
Programming for an amount of time for which Broker shall have offered such
Brokered Programming for transmission by the Stations, Licensee shall pay
to Broker ("Broker Compensation") the then-current value (established by
reference to Broker's standard rates for the same) of the advertising time
that was scheduled to have been broadcast by the Stations during any such
Brokered Programming that was offered by Broker for transmission by the
Stations but that was not transmitted; provided, however, that any payment
of Broker Compensation shall not prejudice any of Broker's rights under
Section 4.4 or 4.6 hereof.
(b) Broker Compensation shall be payable as set forth in
Section 3.1(a) above if Licensee's failure or refusal to carry the
Brokered Programming is for any reason other than either (i) the permitted
three (3) hours per week of Licensee Programming as provided in
Section 3.1(a) above or (ii) a force majeure event as provided in
Section 8.1 hereof; provided, however, that any payment of Broker
Compensation shall not prejudice any of Broker's rights under Section 4.4
or 4.6 hereof.
(c) Notwithstanding the provisions of Section 3.1(a) hereof,
no Broker Compensation shall be payable if Licensee shall determine, in
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its sole discretion, that Licensee Programming, as defined in Section 1.2
hereof, in an amount exceeding three (3) hours per week, shall be
necessary to be broadcast by the Stations in order to fulfill FCC
requirements or Licensee's obligations as an FCC licensee; provided,
however, that any exercise by Licensee of its rights pursuant to this
Section 3.2(c) shall not prejudice any of Broker's rights under Section
4.4 or 4.6 hereof.
(d) Licensee agrees that its rights to preempt the Brokered
Programming will be exercised only in good faith and not for a commercial
or economic advantage.
(e) Licensee shall pay to Broker any Broker Compensation
which accrues during a month by no later than the fifth business day of
the following month. Furthermore, any Broker Compensation which accrues
during a partial month shall be paid within five (5) business days
following the end of the Term.
2. Exhibit C to the TBA. Exhibit C to the TBA is hereby deleted in its
entirety.
3. Section 2.4 of the Purchase Agreement. The first paragraph of
Section 2.4 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
2.4 Purchase Price and Terms of Payment. The purchase price
("Purchase Price") to be paid by Buyer to Seller is Forty-Two Million Nine
Hundred Fifty Thousand Dollars ($42,950,000.00), subject to adjustment as
provided for in Section 2.4.4 below, to be paid as follows:
4. Section 2.4.2 of the Purchase Agreement. Section 2.4.2 of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
2.4.2 Additional Payments. The balance of the Purchase Price
shall be paid as follows:
2.4.2.1 Cash Payment on December 2, 1996. On
December 2, 1996, Buyer shall pay to Seller Four Hundred Fifty Thousand
Dollars ($450,000.00)(the "December 2 Payment"), such payment representing
a non-refundable prepayment of a portion of the Purchase Price. Payment
shall be made by wire transfer of immediately available funds.
2.4.2.2 Cash Payment at Closing. Buyer shall pay to
Seller at Closing the balance of the Purchase Price: Thirty-Six Million,
Five Hundred Thousand Dollars ($36,500,000.00), subject to adjustment as
provided for in Section 2.4.4 below. Payment shall be made by wire
transfer of immediately available funds.
5. Section 11.1 of the Purchase Agreement. The first sentence in
Section 11.1 of the Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
The Closing shall take place ten (10) business days after
satisfaction (or waiver by the appropriate party) of the conditions
precedent hereunder, or on such other date as the parties may
mutually agree (the "Closing Date"); provided that the Closing shall
occur no earlier than March 1, 1997.
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6. Section 11.3.1 of the Purchase Agreement. Section 11.3.1 of the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
11.3.1 Cash. A wire transfer of immediately available
funds to Seller in the amount provided for in Section 2.4.2.2;
7. Article XIII of the Purchase Agreement. The following sentence is
added at the end of Article XIII of the Purchase Agreement:
In addition, if this Agreement is terminated for any
reason, Seller shall be entitled to retain all of the
December 2 Payment.
8. Section 15.3 of the Purchase Agreement. The following sentence is
added at the end of Section 15.3 of the Purchase Agreement:
Notwithstanding the foregoing, Buyer agrees and
acknowledges that Buyer shall not be entitled to a
refund of any portion of the December 2 Payment.
9. Miscellaneous. All provisions of the Purchase Agreement and the TBA
except those amended hereby continue in full force and effect and shall also
apply to this Amendment to the extent applicable. This Amendment may be
executed in counterparts, each of which shall be an original and all of which,
taken together, shall be one instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
ZIMCO, INC.
By: ______________________________
Xxxxxx Xxxxxx
President
EMMIS BROADCASTING CORPORATION
By: ______________________________
Xxxxx X. Xxxx
Radio Division President
