AMENDMENT TO ASSET PURCHASE AGREEMENT
This Amendment to Asset Purchase Agreement is made and entered into this
22nd day of October, 1996, by and between Texas Coast Broadcasters, Inc.
("Seller"), a Texas corporation, and Multi-Market Radio, Inc. ("Purchaser"), a
Delaware corporation.
WHEREAS, Seller and Purchaser executed that certain Asset Purchase
Agreement dated December 27, 1995 (the "Agreement"), pursuant to which Seller
agreed to sell to Purchaser the properties and assets described in the
Agreement;
WHEREAS, a portion of the Xxxxx Site, as defined in the Agreement, will be
transferred from Seller to Industrial Recovery Capital Company LLC ("IRCC")
pursuant to an agreement that will require IRCC to remediate the property and
indemnify Purchaser and Seller for remediation costs and certain third party
claims; and
WHEREAS, the Seller and Purchaser wish to amend the Agreement to evidence
certain agreements between Purchaser and Seller related to the transfer of
assets from Seller to Purchaser.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained in this amendment and in the Agreement, the parties
agree as follows:
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1. Purchaser will deliver to Bank of Houston, as Escrow Agent, on
Wednesday, October 23, 1996, the sum of $2,000,000 as the xxxxxxx money
provided for in Section 2.1 of the Agreement. Upon receipt of such funds, Bank
of Houston is hereby authorized and directed to return to Purchaser the
irrevocable standby letter of credit held by Bank of Houston pursuant to
Section 2.1 of the Agreement (the "Letter of Credit"). Bank of Houston will
hold the xxxxxxx money in escrow, in an interest bearing account, until
instructed to disburse such funds by the terms of this amendment or the written
instructions of Seller and Purchaser, which instructions will be consistent
with the provisions of this amendment. In addition, Purchaser and Seller hereby
instruct the Escrow Agent to transfer any balance remaining in the
Environmental Escrow Account to the escrow account established to hold the
xxxxxxx money, and such amount shall be treated as additional xxxxxxx money
(notwithstanding the fact that one-half of such Environmental Escrow Account
was contributed by Seller). If the sale of assets provided for in the Agreement
closes, the xxxxxxx money, including the entire Environmental Escrow Account,
will be applied to the purchase price of the assets. If, for any reason, other
than (i) termination of the Agreement in accordance with its terms, (ii) a
Default by Seller occurring after the date of this amendment or (iii) failure
of a condition precedent, the asset sale does not close, Seller shall be
entitled to retain the total amount of the xxxxxxx money, including the portion
of the Environmental Escrow Account attributable to Purchaser, as liquidated
damages, free and clear of any claim of Purchaser. If Purchaser does not wire
transfer the sum of $2,000,000 to Bank of Houston on October 23, 1996, the
Agreement shall terminate automatically, the Letter of Credit and the portion
of the Environmental Escrow Account attributable to Purchaser shall be
immediately returned to Purchaser, the portion of the Environmental Escrow
Account
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attributable to Seller shall be immediately returned to Seller, and neither
party shall have any claim or right against the other.
2. Any Environmental Expenses incurred subsequent to September 30, 1996,
shall be paid by the party that authorized such Environmental Expense and shall
not be deducted from the Environmental Escrow Account. In this regard, the
parties agree that Seller shall be deemed to have authorized any services
performed by Weston after September 30, 1996, and Purchaser shall be deemed to
have authorized any services performed by Environmental Strategies Corporation
after September 30, 1996.
3. Purchaser has informed Seller that Purchaser's agreement with IRCC
requires Purchaser to pay IRCC $8,500,000 at the time of Closing. In addition,
if IRCC determines that the cost of the remediation of the Xxxxx Site will
exceed $2,000,000, Purchaser is required to pay IRCC an amount equal to the
remediation costs in excess of $2,000,000 but less than $8,500,000 (the
"Contingent Amount"), with the Contingent Amount to be paid to IRCC in ten
equal annual installments, without interest. If the asset sale closes, Seller
will contribute the sum of $250,000 toward the payment to be made by Purchaser
to IRCC at Closing by reducing the purchase price of the assets by $250,000,
provided the indemnification of Seller by IRCC covers both third party claims
asserted against Seller and remediation costs. In addition, if the asset sale
closes, Seller agrees to pay to IRCC, in installments, the first $250,000 of
the Contingent Amount and the final $500,000 of the Contingent Amount, if such
amounts are required to be paid to IRCC by virtue of the remediation costs
exceeding $2,000,000, provided
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the indemnification of Seller by IRCC covers both third party claims asserted
against Seller and remediation costs. Any payment of the Contingent Amount that
Seller is required to pay to IRCC will be paid pursuant to the same schedule
and subject to the same conditions as would be applicable if the payments were
made by Purchaser. In addition, Seller shall be entitled to the same rights and
protections with respect to the payment of the Contingent Amount as are
provided to Purchaser in its agreement with IRCC.
4. At Closing, Seller will deposit the sum of $750,000 ("Seller Deposit")
with Bank of Houston or another escrow agent selected by Seller and approved by
Purchaser to be placed in an interest bearing escrow account. Interest earned
on this account will be distribute quarterly to Seller by the escrow agent.
Seller's Deposit will be used to pay Seller's portion of the Contingent Amount
as and when it becomes due. Payments from the escrow account shall be made at
the direction of IRCC, provided IRCC certifies to the escrow agent and Seller
that it has complied with all conditions precedent to the withdrawal of such
funds. If the Contingent Amount is finally determined by IRCC to be less than
$1,500,000 any portion of Seller's Deposit that is unnecessary to meet Seller's
payment of the Contingent Amount will be promptly returned to Seller at the
time of such determination. In this regard, Purchaser and Seller agree that
they will attempt to require IRCC to determine within two years of Closing the
portion of the Contingent Amount that must be paid so that any portion of
Seller's Deposit that is unnecessary may be returned to Seller within two years
of Closing. In addition, any portion of Seller's Deposit remaining after
payment of the portion of the Contingent Amount to be paid by Seller shall be
returned to Seller.
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5. Seller and Purchaser agree that Seller's conveyance of a portion of the
Xxxxx Site to IRCC will be on the same terms and conditions as Seller is
required to transfer such property to Purchaser under the terms of the
Agreement. Seller will provide IRCC access to any information developed by
Weston with respect to the Xxxxx Site, but will not be obligated to allow IRCC
to conduct further assessment or testing of the Xxxxx Site prior to Closing. In
addition, Purchaser represents that IRCC will not conduct any testing on
property adjacent to the Xxxxx Site prior to Closing. Seller, at its cost, will
cause a survey of the Xxxxx Site to be completed as soon as reasonably
practicable (but in any event on or before November 1, 1996), which survey
shall show and describe the portion of the Xxxxx Site to be transferred to
Xxxxx Electro Plating Co. ("Dixie") and the portion to be transferred to IRCC,
and shall deliver such survey to Purchaser as soon as it is received from the
surveyor.
6. The closing of the asset sale provided for in the Agreement shall be
held on January 8, 1997, with the sale effective as of January 1, 1997.
7. Except for Section 5.9(b) of the Agreement which relates to the
operation of the Environmental Escrow Account and Section 5.9(i) of the
Agreement which relates to Purchaser's release of Seller from claims related to
Environmental Expenses, Section 5.9 of the Agreement is hereby eliminated.
Additionally, Section 15.1(a) of the Agreement is hereby eliminated.
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8. The obligations of Purchaser and Seller under this Agreement are
subject to completion on or prior to the Closing Date of each of the following
conditions, except to the extent such conditions have been waived by the
benefitting party in writing:
a. Seller has delivered to Purchaser by or before November 1, 1996, a
survey of the Xxxxx Site showing the portion of the Xxxxx Site to be
transferred to IRCC and the portion to be transferred to Dixie. The
portion of the Xxxxx Site to be transferred to Dixie shall be
substantially the same as the property described by drawing in the July
22, 1996 letter agreement between Seller and Dixie, with the remainder of
the Xxxxx Site to be transferred to IRCC.
b. Seller has completed the transfer of a portion of the Xxxxx Site
to Xxxxx on terms and conditions that provide Purchaser and IRCC
reasonable rights of ingress and egress to the remainder of the Xxxxx
Property and a nonexclusive right to use the transferred property for the
operation of the radio tower, consistent with its current use. The term of
such transfer shall be substantially in accordance with the form of
Agreement attached hereto as Exhibit A, and the rights and benefits of
such Agreement shall be assigned at Closing to Purchaser and/or IRCC.
c. Purchaser's agreement with IRCC provides indemnification of Seller
by IRCC that covers both third party claims asserted against Seller and
remediation costs.
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9. Prior to and after Closing, Seller agrees to provide any reasonable
assistance that may be required by IRCC with respect to the Xxxxx Site,
provided IRCC reimburses Seller for any expenses, losses or damages Seller may
incur or suffer as a result of providing such assistance and provided further
that Seller will not be required to allow IRCC to conduct additional assessment
from IRCC should not be unreasonable and should not require unreasonable effort
on the part of Seller.
10. Seller withdraws its notice of termination of the Agreement.
Similarly, Purchaser withdraws its assertion that Seller is or was in default
under the Agreement. Purchaser acknowledges that, as of this date, Seller has
complied with all terms and conditions of the Agreement and that no Default (as
that term is defined in the Agreement) exists and that no event has occurred
(or failed to occur) which, with the passage of time and/or proper notice,
would become a Default. Similarly, Seller acknowledges that, as of this date,
Purchaser has complied with all terms and conditions of the Agreement and that
no Default (as that term is defined in the Agreement) exists and that no event
has occurred (or failed to occur) which, with the passage of time and/or proper
notice, would become a Default. Purchaser accepts the current condition of all
matters relative to the sale, including the governmental licenses and the
operations of the stations.
11. Purchaser has the right to terminate this Agreement by written notice
to Seller and Bank of Houston on or before 5:00 p.m. Central Standard Time on
November 6, 1996, if it has not negotiated an agreement with IRCC that is
acceptable to it in all respects. Purchaser
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elects to terminate this Agreement pursuant to this provision, Bank of Houston
is hereby instructed to distribute the xxxxxxx money to the parties in the
following manner: (i) $2,000,000 shall be distributed to Purchaser; (ii)
one-half of the balance of the Environmental Escrow Account that was added to
the xxxxxxx money shall be distributed to Purchaser and one-half shall be
distributed to Seller; and (iii) the remainder of the amount held by Bank of
Houston (which amount should constitute interest on the xxxxxxx money) shall be
distributed to Purchaser and Seller in the same ratio as the amounts
distributed to them pursuant to provisions (i) and (ii) of this sentence. If
Purchaser does not elect to terminate this Agreement on or prior to November 6,
1996, Bank of Houston shall distribute the xxxxxxx money, including any
interest earned on such amount, to Seller to be held in escrow by Seller until
Closing.
12. This amendment contains the understanding of the parties hereto with
respect to the matters addressed in this amendment of the Agreement. In
addition, this amendment supersedes and replaces all prior amendments to the
Agreement. As of the date hereof, the rights, duties and obligations of the
parties with respect to the sale of the properties and assets described in the
Agreement are the rights, duties and obligations set forth in the Agreement, as
modified solely by this amendment. The parties confirm that any future
amendments to the Agreement must be evidenced by a written instrument signed by
the parties, as required by Section 16.8 of the Agreement.
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13. This amendment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. Subject to the terms of Paragraph 9 of this amendment, Seller and
Purchaser agree to work together in good faith to reach final agreement on any
and all documentation relating to IRCC's agreement to remediate the Xxxxx Site
and to indemnify Seller and Purchaser for remediation costs and third party
claims (including, without limitation, the escrow agreement described in
Paragraph 4 hereof and any similar agreement).
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Assent Purchase Agreement to be effective as of the date first above written.
SELLER:
TEXAS COAST BROADCASTERS, INC.
By: /s/ Xxxxx X. Xxxxxx
____________________________________
PURCHASER:
MULTI-MARKET RADIO, INC.
By: /s/ Xxxxxxx X. Xxxxxx
____________________________________
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EXHIBIT A
AGREEMENT
This Agreement dated as of the ____ day of October, 1996, is entered into
by and between Texas Coast Broadcasters, Inc. ("Texas Coast") and Xxxxx Electro
Plating Co. ("Dixie").
WHEREAS, Texas Coast is the owner of a certain tract of land located at
315 North Xxxxx in Houston, Texas (the "Ennis Property");
WHEREAS, based on soil and groundwater sampling on the Ennis Property, it
appears that chromium contamination has migrated onto a portion of the Ennis
Property from property owned by Dixie which is located at 3001 Xxxxxxx in
Houston, Texas; and
WHEREAS, Texas Coast and Dixie have reached the following agreements in
order to facilitate Dixie's remediation of the chromium contamination.
NOW, THEREFORE, in consideration of the mutual benefits accruing to the
parties, Texas Coast and Dixie agree as follows:
1. Texas Court will convey to Dixie for $5,000 and the other consideration
set forth in this Agreement, the portion of the Xxxxx Property that has been
impacted by the chromium contamination migrating from the Dixie Property. The
property to be transferred to Dixie (the "Transferred Property") is more fully
described in Exhibit A of the Warranty Deed and Reservation of Easement
attached hereto as Exhibit 1. Texas Coast will retain an easement over, under,
upon, through and across the Transferred Property to provide access to the
remainder of the Xxxxx Property and to reserve the right to use the Transferred
Property, including its
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subsurface and air space, for purposes of continuing the operation of the radio
tower on the Ennis Property. The easement retained by Texas Coast will be
without cost to Texas Coast, other than expenses and costs of Texas Coast or
its assignee attributable to the use of such easement, including the cost of
liability insurance covering the acts or omissions of Texas Coast or its
assignee associated with the use of the easement. The terms of the property
transfer, including the easement retained by Texas Coast, are more fully set
forth in the Warranty Deed and Reservation of Easement attached hereto as
Exhibit 1.
2. Dixie will remediate the Transferred Property under the Texas Voluntary
Cleanup Program administered by the Texas Natural Resource Conservation
Commission ("TNRCC") and will conduct any investigation and any remediation or
other corrective action that may be required by the TNRCC. With respect to the
proposed remediation, Dixie has prepared a Work Plan Summary (the "Work Plan"),
a copy of which is attached as Exhibit 2. The specific actions to be taken by
Dixie are more fully described in the Work Plan, but the Work Plan generally
contemplates remediation of both the soil and the shallow groundwater in
accordance with Risk Reduction Standard No. 2. The Work Plan also describes
certain specific remedial actions that Dixie agrees with Texas Coast to
implement, regardless of the requirements of the TNRCC, including (i) removal
of that portion of the initial two feet of soil in the drainage swale on the
Transferred Property that contains chromium in excess of the Soil-Air Interface
Value under Risk Reduction Standard No. 2 for industrial facilities and (ii)
implementation of the groundwater recovery and treatment system described in
the Work Plan, unless it is determined
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through testing that such system will not contain and remediate the chromium
contaminated groundwater.
3. Dixie will keep Texas Coast and its successors and assigns informed of
its actions with respect to the chromium contamination and will notify Texas
Coast, or its successor or assignee, of any remediation or other corrective
action proposed for the Transferred Property. After receiving such notices,
Texas Coast, or its successor or assignee, will provide Dixie information
concerning any equipment or structures maintained by Texas Coast, or its
successor or assignee, on the Transferred Property that might be impacted by
the remediation or other corrective action and Xxxxx will use its best efforts
to plan, design, implement and perform any remediation or other corrective
action required by the TNRCC in a timely and professional manner and in a
manner consistent with the operation of the radio tower on the Transferred
Property. Dixie will provide Texas Coast and its successors and assigns a copy
of any significant report, plan or correspondence submitted to the TNRCC with
respect to the chromium contamination and will provide Texas Coast and its
successors and assigns at least five days' notice (or shall provide Texas Coast
and its successors and assigns notice as soon as practicable if five days'
notice is not practical) of any meeting with or hearings before the TNRCC with
respect to the chromium contamination and will not object to the participation
of Texas Coast and its successors and assigns in such meetings or hearings to
the extent such meetings or hearings concern remediation of the Transferred
Property.
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4. Dixie agrees to indemnify, defend and hold harmless Texas Coast and its
officers, directors, successors and assigns from, against and in respect of any
and all costs, expenses (including reasonable attorney's fees), losses and
damages, including full indemnity from claims asserted by third parties, that
arise from or relate to (i) the chromium contamination existing on the
Transferred Property or originating from Dixie's property located at 3001
Xxxxxxx, or (ii) the remediation activities conducted by Dixie on the
Transferred Property.
5. Texas Coast agrees to indemnify, defend and hold harmless Dixie and its
officers, directors, successors and assigns from, against and in respect of any
and all costs, expenses (including reasonable attorney's fees), losses and
damages, including full indemnity from claims asserted by third parties, that
arise directly from any lead contamination existing on the Transferred Property
on the date of transfer, or any battery casings or other wastes placed on the
Transferred Property by Texas Coast or with its permission, other than any
costs, expenses, losses and damages that arise from or relate to the removal of
soil from a portion of the initial two feet of soil in the drainage swale on
the Transferred Property. In consideration for such agreement to indemnify,
Dixie agrees that Texas Coast and its successors, assigns, and agents may
conduct any and all corrective actions on the Transferred Property that are
required by the TNRCC or deemed necessary or desirable by Texas Coast or its
successors or assigns to remediate or prevent any release or threatened release
of lead on or from the Transferred Property, and Dixie grants Texas Coast and
its successors, assigns, and agents access to the Transferred Property for
purposes of conducting such corrective actions.
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6. This Agreement does not constitute, and will not be construed as, an
admission of wrongdoing by any party. In addition, except for the obligations
and responsibilities Dixie has agreed to accept pursuant to the terms of this
Agreement, this Agreement does not otherwise constitute an agreement by Dixie
to accept liability or responsibility for the chromium contamination, nor does
it alter or diminish any liability Xxxxx may have for the chromium
contamination independent of this Agreement.
[7. Xxxxxxxxxx Co., Inc. (the "Guarantor"), the parent corporation of
Dixie, hereby guarantees the performance of Dixie in accordance with the terms
of this Agreement. Guarantor agrees that it shall be liable under this
Agreement to the same extent as if it and not Dixie had performed or failed to
perform Dixie's obligations under this Agreement. The Guarantor agrees that
Texas Coast, or its successor or assignee, shall be entitled to take any action
against the Guarantor or Dixie in any order or concurrently as Texas Coast, or
its successor or assignee, may elect and shall not be required to resort to any
other remedy which Texas Coast, or its successor or assignee, may have. This
guarantee shall be construed as a continuing, absolute and unconditional
guaranty and the obligations and liabilities of the Guarantor shall not be
conditioned or contingent upon the pursuit by Texas Coast or any other persons
at any time of any right or remedy against Dixie or against any other person
that may be or become liable under this Agreement. No delay in exercising or
failure to exercise any option, right, power or privilege hereunder by Texas
Coast, or its successor or assignee, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such option, power, right or
privilege preclude any other further exercise of such option, power, right or
privilege. The
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Guarantor hereby waives demand for performance, or any other notice or
condition precedent to action against the Guarantor for performance pursuant to
this Agreement.] [Note - This provision is still under discussion and may be
deleted if found to be unnecessary.]
8. Any and all notices, requests, consents, demands and other
communications required or permitted to be made or given under this Agreement
must be in writing and must be given to the other party at its address or
facsimile number set forth in this paragraph or at such other address or
facsimile number as such party may hereafter specify for such purpose by notice
to the other party. Notices will be deemed to have been made or given (i) if
given by facsimile, when sent, and the appropriate confirmation is received,
and (ii) if given by any other means, when delivered. Unless changed in
accordance with this paragraph, the addresses for notices are as follows:
If to Texas Coast:
-----------------------
-----------------------
-----------------------
-----------------------
Facsimile No.:
---------
If to Dixie:
-----------------------
-----------------------
-----------------------
Facsimile No.:
-----------
9. This Agreement, including the exhibits referenced herein, represents
the entire Agreement between Texas Coast and Dixie and fully supersedes all
prior agreements and
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understandings between Texas Coast and Dixie and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements between Texas
Coast and Dixie. This Agreement cannot under any circumstances be modified
orally, and no agreement will be effective to waive, change, modify, or
discharge this Agreement in whole or in part unless such agreement is in
writing and is signed by both Texas Coast and Dixie.
10. In the event any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement will nonetheless remain in full force and effect.
11. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This Agreement is
governed by the laws of the State of Texas.
EXECUTED in multiple originals as of the date first herein specified.
TEXAS COAST BROADCASTERS, INC.
By:
----------------------------------
XXXXX ELECTRO PLATING CO.
By:
----------------------------------
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XXXXXXXXXX CO., INC.
By:
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