EXHIBIT 10.2
AMENDMENT NO. 2
TO
PURCHASE AND SALE AGREEMENT
This AMENDMENT No. 2 TO PURCHASE AND SALE AGREEMENT ("Amendment") is made as of
the 24th day of August, 2006, by and among Cherry Creek Radio LLC, a limited
liability company organized under the laws of the State of Delaware ("Buyer"),
Xxxxxx Communications, Inc., a corporation organized under the laws of the State
of Washington ("Parent"), and Xxxxxx Radio Regional Group Inc., a corporation
organized under the laws of the State of Washington ("Seller").
RECITALS:
WHEREAS, Buyer, Parent and Seller are parties to that certain Purchase and
Sale Agreement dated May 30, 2006, and amended by that certain Amendment No. 1
to the Purchase and Sale Agreement dated June 6, 2006 (collectively, the
"Agreement"), which provides for the assignment of certain licenses, permits and
authorizations issued by the Federal Communications Commission and related
assets used or useful in the operation of the Stations from Seller to Buyer; and
WHEREAS, Buyer, Parent and Seller desire to amend the Agreement as set
forth herein to (a) eliminate certain stations in Great Falls, Montana, and
associated assets from the assets being conveyed from Seller to Buyer pursuant
to the Agreement; (b) define KAAK as the only Great Falls Station; (c) adjust
the Total Purchase Price and the Purchase Price in the Primary Closing and the
Great Falls Closing accordingly, and (c) to make other associated changes to the
Agreement.
NOW, THEREFORE, in consideration of the above recitals and of the mutual
agreements and covenants contained in this Agreement, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
1. Capitalized terms set forth in this Amendment shall have the meanings
ascribed to them in the Agreement.
2. All references in the Agreement to "Great Falls Stations" are deleted
and the term "Great Falls Station" substituted in its place and the appropriate
necessary grammatical changes shall be assumed in connection with such change.
3. The definition of Great Falls Waiver is deleted from Section 1.1 of the
Agreement and the definitions of Great Falls Closing, Great Falls Stations,
Primary Closing, Primary Stations and Purchase Price in Section 1.1 of the
Agreement are amended to read as follows:
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"Great Falls Closing" means the consummation, in accordance with the
terms of this Agreement, of the purchase and sale of the Purchased
Assets that are used or held for use with respect to the Great Falls
Station.
"Great Falls Station" means Station KAAK(FM), located in Great Falls,
Montana.
"Primary Closing" means the consummation, in accordance with the terms
of this Agreement, of the purchase and sale of the Purchased Assets
that are used or held for use with respect to all Stations other than
the Great Falls Station.
"Primary Stations" means all Stations other than the Great Falls
Station.
"Purchase Price" shall mean the sum of Twenty Nine Million One Hundred
Forty Thousand Dollars ($29,140,000), as adjusted pursuant to Section
2.5 hereof; provided, however, that if a Bifurcated Closing occurs
pursuant to Section 2.3(b), the term "Purchase Price" with respect to
the Primary Closing shall mean Twenty Six Million One Hundred Forty
Thousand Dollars ($26,140,000), as adjusted pursuant to Sections 2.5
and 10.1, and the term "Purchase Price" with respect to the Great
Falls Closing shall mean Three Million Dollars ($3,000,000.00), as
adjusted pursuant to Sections 2.5 and 10.1.
4. The Agreement is amended to revise Section 2.3(b) to read as follows:
(b) Notwithstanding anything to the contrary contained herein,
Seller and Buyer shall jointly and promptly, but no later than one
business day from the date of this Amendment (i) request dismissal by
the FCC of their pending applications for consent to the assignment of
license of stations KXGF(AM), KQDI(AM), KQDI-FM, KIKF(FM), KINX(FM),
and K274BC from Seller to Buyer; (ii) notify the FCC of their intent
to bifurcate the Closing as set forth below, and (iii) request that
the FCC immediately approve the assignment of licenses of the Primary
Stations to Buyer. In the event the FCC gives its consent to the
assignment of license of the Primary Stations to Buyer, but does not
give its consent to the assignment of the Great Falls Station to
Buyer, then notwithstanding Section 2.3(a), upon the satisfaction of
the conditions set forth in Articles 7 and 8 or, if permissible, the
waiver of such conditions at the waiving party's option (disregarding
for this purpose any such conditions to be satisfied by actions to be
taken at the Primary Closing), then the parties shall undertake to
bifurcate the Closing as follows (the "Bifurcated Closing"): (a) the
Primary Closing will occur, regardless of whether the conditions to
the Great Falls Closing have been satisfied; and (b) the Great Falls
Closing will occur only if the Primary Closing has occurred and all
other conditions to the Great Falls Closing have been satisfied. The
failure of the Great Falls Closing to occur will have no effect on the
Primary Closing, and the Primary Closing shall not be unwound or
otherwise rescinded as a result of such failure. The actual day on
which a Closing occurs, whether it be the Primary Closing, the Great
Falls Closing or both, is the "Closing Date."
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5. The last two sentences of Section 2.5(d) of the Agreement shall be
deleted.
6. The first sentence of Section 3.2(a) of the Agreement shall be amended
so that "or in the case of the Great Falls Closing, Buyer's designee" shall be
deleted.
7. Section 3.6 of the Agreement and all references to said provision and
the Great Falls Waiver are hereby deleted from the Agreement.
8. The last sentence of Section 11.8 of the Agreement is hereby deleted
from the Agreement.
9. The parties agree to promptly in good faith amend Schedules 1.2, 1.3,
1.4, 1.5, 1.7 and 1.8 (as to Schedules 1.2, 1.5 and 1.8, they shall remain
subject to the side letters referenced below) to delete all assets described in
the Schedules as assets of Seller's stations KXGF(AM), KQDI(AM), KQDI-FM,
KIKF(FM), KINX(FM), and K274BC (recognizing that with respect to Schedule 1.3,
the intangible property for Great Falls other than the logo, any jingles, and
slogan for K-99 shall be so deleted) as described in such Schedules, and to make
any other corresponding changes to other Schedules as are necessary to
effectuate the intent of this Amendment with regard to such stations. In the
event the parties are unable to agree on such changes to the Schedules by August
31, 2006, the parties agree to refer the matter to an independent public
accounting firm agreeable to both parties by September 5, 2006, whose
determination shall be final and shall be completed by September 20, 2006. The
costs of such independent accounting firm shall be paid for by Seller and
Parent. The parties further agree to promptly negotiate in good faith to (a)
amend the side letter dated May 30, 2006 by and between the parties hereto,
which relates to certain real property owned by Seller, to provide that (i) the
KAAK Tower (as defined therein) shall be transferred to Buyer pursuant to the
Great Falls Closing, (ii) Buyer shall enter into an assignable, long-term
standard commercial lease agreement with Seller for use of the KAAK Tower, at a
lease rate of $1 per year (plus sharing of costs) for so long as Seller owns
station KQDI-FM, and $800 per month (with appropriate CPI adjustments) in the
event that Seller sells KQDI-FM to a non-affiliated third party, and (iii) the
Great Falls Studio (as defined therein) shall be retained by Seller and Buyer
shall have access to the Great Falls Studio and related equipment for KAAK for
60 days from the date of the Great Falls Closing for transition to its own
location, at no charge, (b) amend the side letter dated June 6, 2006 by and
between the parties hereto, which relates to certain Multi-Station Contracts (as
defined therein), to provide that Seller shall retain such Multi-Station
Contracts and Buyer shall enter into new agreements with the parties thereto, if
it so desires, and (c) make any other corresponding changes to the side letters
as are necessary to effectuate the intent of this Amendment.
10. Schedules 1.0 and 1.6 are amended to delete all references to the
following stations located in the Great Falls, Montana, radio market, none of
which will be conveyed to Buyer pursuant to the Agreement: KXGF(AM), KQDI(AM),
KQDI-FM, KIKF(FM), KINX(FM), and K274BC; however, the XXX000, XXX xxx XX00000,
RPU listed under KAAK(FM) on Schedule 1.6 shall be transferred to Buyer
11. This Amendment shall be construed and governed according to the laws of
Colorado, without regard to the conflicts of laws principles thereof. This
amendment shall be
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binding on and inure to the benefit of the parties hereto and their respective
heirs, successors or representatives.
12. The Agreement and all of the documents referred to therein or
contemplated thereby hereby are amended such that all references therein to the
Agreement are deemed to include this Agreement. All of the terms of the
Agreement not herein amended shall remain in full force and effect.
13. The parties agree to issue a joint press release agreed to by Buyer and
Seller relating to the changes contemplated by this Amendment and neither Buyer,
Seller nor Xxxxxx or any of their employees, agents, representatives or
affiliates shall make any public statement contrary to such press release.
14. The parties agree to prepare an amendment to the Time Brokerage
Agreement dated July 21, 2006 which shall provide that if there is a Bifurcated
Closing, the Time Brokerage Agreement shall continue as to the Great Falls
Station until the Great Falls Closing. The fee for the Great Falls Station under
the Time Brokerage Agreement shall be reduced to reflect only KAAK(FM) as set
forth in the methodology provided by Parent and Seller to Buyer upon such event.
15. This Amendment may be executed in one or more counterparts or by
facsimile with the same effect as if the parties had all signed the same
document. All counterparts shall be construed together and shall be considered
one document.
BALANCE OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGE FOLLOWS.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 2 to
the Purchase and Sale Agreement as of the day and year first above written.
"BUYER"
CHERRY CREEK RADIO LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Its: EVP/CFO
"SELLER"
XXXXXX RADIO REGIONAL GROUP INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Its: President
"PARENT"
XXXXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Its: President & CEO
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