EXHIBIT 10.3
SECOND AMENDMENT AND AGREEMENT REGARDING
ASSET PURCHASE AGREEMENT
This Second Amendment and Agreement Regarding Asset Purchase Agreement
("Amendment") is entered into as of September 22, 2006 by and among XXXXXX RADIO
REGIONAL GROUP, INC., a Washington corporation ("Buyer"), EQUITY BROADCASTING
CORPORATION, an Arkansas corporation ("Equity"), LA GRANDE BROADCASTING, INC.,
an Arkansas corporation ("La Grande"), EBC BOISE, INC., an Arkansas corporation
("EBC Boise") and EBC POCATELLO, INC., a Nevada corporation ("EBC Pocatello" and
together with La Grande and EBC Boise, the "Sellers" and/or "Equity Entities").
RECITALS
A. Buyer, Sellers and, for the limited purpose set forth therein, Equity,
are parties to an Asset Purchase Agreement, dated December 7, 2005, as amended
by the Amendment and Agreement Regarding Asset Purchase Agreement, dated May 1,
2006 (the "First Amendment") (collectively, the "Agreement"), pursuant to which
the Sellers will sell, transfer and assign to Buyer, and Buyer will purchase and
assume from the Sellers, the Purchased Assets and Assumed Liabilities.
Capitalized terms not defined in this Amendment have the meanings assigned to
such terms in the Agreement.
B. The parties hereto (each, a "Party," and, collectively, the "Parties")
have determined to amend the Agreement so that (1) the Oregon Closing may be
deferred on the terms set forth in this Amendment, (2) the Buyer shall provide a
non-refundable deposit in connection with this Amendment, and (3) the Buyer
shall waive its right to an Indemnity Deposit to secure the indemnification
obligations of the Equity Entities under the Agreement.
C. The Parties have determined to provide Buyer with an option to purchase
additional television stations from the Equity Entities.
D. The Parties have determined to make certain amendments to the Joint
Sales Agreement between Buyer, Equity and La Grande, dated July 1, 2006 (the
"Joint Sales Agreement") related to the deferral of the Oregon Closing.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Amendment. Notwithstanding Section 2.4 or any other provision in the
Agreement to the contrary, including those in Articles 7 and 8 of the
Agreement, and subject to Section 3 of this Amendment and Articles 7 and 8
of the Agreement, the Oregon Closing shall occur on November 1, 2006 or
such earlier time as the Parties may agree. In connection with the Oregon
Closing, the parties agree and confirm, and the Agreement is hereby
amended, to reflect the following:
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a. The provisions of Section 2.7 (Payment of Purchase Price) of the
Agreement are hereby amended so that, notwithstanding anything to the
contrary therein, (i) upon execution of this Amendment, but in no
event later than September 22, 2006, $6,000,000 of the Purchase Price
with respect to the Oregon Closing will be paid as nonrefundable
(except as otherwise provided in Section 2 of this Amendment)
consideration for the extension of the Oregon Closing ("Oregon
Extension Consideration") via a wire transfer to an account designated
by the Equity Entities, and, except as otherwise provided by Section 3
of this Amendment, (ii) at the Oregon Closing, Buyer shall pay, by
wire transfer to an account designated by the Equity Entities, an
amount equal to the Purchase Price for the Oregon Closing, minus (1)
any excess amount of the JSA Deposit under the First Amendment, (2)
the Extension Consideration under the First Amendment, (3) the Oregon
Extension Consideration, and (4) the Additional JSA Deposit.
b. The Buyer hereby waives its right to the Indemnity Deposit as security
for the indemnification obligations of the Equity Entities under
Article 9 of the Agreement; provided, however, that nothing in this
Amendment shall relieve the Equity Entities of any indemnification
obligations under Article 9 and shall not be deemed to be a waiver of
any of Buyer's indemnification rights thereunder or any other rights
of Buyer under the Agreement. Section 9.6 of the Agreement is deleted
in its entirety and all references to Section 9.6, the Indemnity
Deposit, the Indemnity Escrow Account or the Indemnity Escrow Agent in
the Agreement or any agreements related thereto are hereby deleted
accordingly.
c. For purpose of the introductory paragraph of Article 3 and Section 7.1
of the Agreement, the term "Closing" or "Closing Date" shall be deemed
to mean September 30, 2006; provided, however, that where a breach of
any of the representations and warranties contained in Article 3 of
the Agreement arises out of the acts or omissions, or is otherwise
within the control of, the Equity Entities, the term "Closing or
"Closing Date" shall mean the date of the Oregon Closing.
d. The first sentence of Section 11.1 of the Agreement is amended to
read, in its entirety, as follows:
All representations, warranties, covenants and obligations
contained in this Agreement shall survive the consummation of the
transactions contemplated by this Agreement; provided, however,
that, except as otherwise provided in Article 9
(Indemnification), the representations and warranties contained
in Articles 3 and 4 of this Agreement shall terminate on April
22, 2008.
2. Oregon Closing. Subject to Section 3 of this Amendment, if the Oregon
Closing does not occur on or prior to November 1, 2006, then the Equity
Entities or Buyer may terminate the Agreement by written notice to each
other; provided, however, that the right to terminate the Agreement in
accordance herewith shall not be available to any Party whose material
breach of any of their covenants, agreements, representations or
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warranties under the Agreement, as amended hereby, shall have been the
cause of, or resulted in, the failure of the Oregon Closing to occur prior
to such date. Notwithstanding any other provisions set forth herein and in
the Agreement to the contrary, if the Oregon Closing fails to occur on or
before November 1, 2006, then the Oregon Extension Consideration shall
remain the sole property of the Equity Entities; provided, however, that,
subject to Section 1(c) of this Amendment, if such failure to close is
solely and directly caused by the material breach by Sellers or Equity of
any of their covenants, agreements, representations or warranties under the
Agreement (as amended hereby), and in no way results from the delay by
Buyer in extending the Closing Date, the Oregon Extension Consideration
shall be returned to Buyer. Each Party hereby acknowledges that it has no
Knowledge (applying such defined term to all Parties), as of the date
hereof, of a material breach by any other Party of any of such other
Party's covenants, agreements, representations or warranties under the
Agreement, as amended hereby.
3. FCC. Notwithstanding anything in Section 2.4 or Section 10.1(a)(viii) or
any other provision in the Agreement to the contrary, the Parties agree
that:
a. Promptly following the date hereof, the Parties shall jointly file
with the FCC an application to request an extension of the period in
which the parties may consummate the assignment of the FCC Licenses
for the Oregon Stations under the FCC Consent and agree to exercise
reasonable best efforts to jointly, diligently and expeditiously
prosecute, and shall cooperate fully with each other in prosecuting,
such application. In addition, the Sellers agree to file, and to
exercise reasonable best efforts to diligently and expeditiously
prosecute, renewal applications for the Oregon Stations (the "Renewal
Applications").
b. In the event that the FCC declines to extend authority for the Parties
to consummate the assignment of the FCC Licenses for the Oregon
Stations to the later of the dates set forth in subsection 3(c)(i) or
3(c)(ii) below, as applicable, the Parties agree to join in a new
application seeking FCC consent to the assignment of the FCC Licenses
of the Oregon Stations from Sellers to Buyer and to exercise
reasonable best efforts to obtain a new FCC Consent with respect to
the assignment of the FCC Licenses for the Oregon Stations from
Sellers to Buyer and to jointly, diligently and expeditiously
prosecute, and shall cooperate fully with each other in prosecuting,
such request for FCC Consent ("New Oregon Stations Assignment
Application").
c. In the event that either the FCC requires the Parties to defer
consummation of the assignment of the FCC Licenses of the Oregon
Stations until after (i) grant of the Renewal Applications, or (ii)
grant of the New Oregon Stations Assignment Application, and such
grant has not occurred by November 1, 2006, then the Equity Entities
or Buyer may terminate the Agreement, as amended, provided, however,
that Buyer may agree to defer closing until ten (10) business days
after public notice of such grant of the renewal applications, and if
necessary the New Oregon Stations Assignment Application.
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4. Option. Upon execution of this Amendment, but in no event later than
September 22, 2006, Buyer shall pay to the Equity Entities a nonrefundable
deposit $1,000,000 ("Option Price") via a wire transfer to an account
designated by the Equity Entities for the purchase of an option (the
"Option") pursuant to which Buyer shall have the right, but not the
obligation to do the following on the terms set forth below:
a. Purchase Certain Television Stations. Upon Buyer's notice to the
Equity Entities, Buyer may purchase (i) KQUP, Pullman, Washington, and
KQUP-LP, Coeur d'Alene, Idaho for a purchase price of $5,500,000
and/or (ii) XXXX-LP, Seattle, Washington for a purchase price of
$2,500,000 (each, a "Station," and, collectively, the "Stations");
provided, however, that the purchase of a Station or the Stations
under (i) or (ii) of this Section, must be consummated within twelve
(12) months of the date hereof. The aggregate purchase price for the
Station(s) under (i) or (ii) of this Section shall be reduced by (a)
$1,000,000 in the event the purchase is consummated within 180 days of
the date hereof, and (b) $500,000 in the event the purchase is
consummated within nine (9) months of the date hereof. In the event
Buyer provides notice to purchase both Stations, such reduction in the
purchase price shall be applied to the purchase price for the first of
such closings to occur, in the event the closings are bifurcated. For
illustrative purposes only, if Buyer elects to purchase both Stations
and the KQUP and KQUP-LP acquisition is consummated first and within
180 days of the date hereof, the $5,500,000 purchase price would be
reduced to $4,500,000 and the purchase price for the subsequent
acquisition of XXXX-LP would remain $2,500,000 (i.e., the applicable
purchase price reduction would be applied only once).
b. Other Terms. Upon exercise of the Option, the parties will prepare and
execute a purchase agreement for the transfer and assignment of FCC
licenses and other assets related to such Station(s), which agreement
shall contain such other terms and conditions, representations,
warranties, covenants and indemnities as the parties may negotiate in
good faith and as are comparable in all material respects to the
Agreement (without reference to any amendments to the Agreement).
c. Survival. The Option shall survive the termination of the Agreement.
5. Joint Sales Agreement. Promptly following the execution of this Amendment,
Buyer, Equity and La Grande shall enter into an amendment to the Joint
Sales Agreement to provide for the following:
a. Extension of Term. The term of such Joint Sales Agreement shall be
extended until the date of the Oregon Closing.
b. Fees; Expenses. In the event the Parties agree to provide for an
additional extension of the Closing as contemplated in Section 3(c) of
this Amendment, (i) the fixed monthly payments under Section 4.1 of
the Joint Sales Agreement shall continue to accrue at a rate of
$15,000 per month for the first ninety (90) days of such extension,
with such rate increasing by $5,000 per month for each additional
month thereafter, and (ii) Buyer shall reimburse Sellers for all
expenses related to
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the Stations, including any repairs or maintenance needed for the
equipment of the Stations.
c. Additional JSA Deposit. In the event the Parties agree to provide for
an additional extension of the Closing as contemplated in Section 3(c)
of this Amendment, Buyer shall pay to the Equity Entities a
nonrefundable (except as otherwise provided in Section 2 of this
Amendment) deposit in the estimated amount of $9,720,000 as
consideration for the extension of the Joint Sales Agreement (the
"Additional JSA Deposit") via a wire transfer to an account designated
by the Equity Entities; provided, however, that if the Oregon Closing
fails to occur after November 1, 2006 and that, subject to Section
1(c) of this Amendment, the failure to close is solely and directly
caused by the material breach by Sellers or Equity of any of their
covenants, agreements, representations or warranties under the
Agreement (as amended hereby), and in no way results from the delay by
Buyer in extending the Closing Date, the Additional JSA Deposit shall
be returned to Buyer.
6. Reasonable Interpretation; No Other Changes. The Parties intend for the
Agreement to be interpreted in light of this Amendment and actions taken
(or not taken) by the Parties in order to effect the Oregon Closing or the
1031 Exchange (and the deferral of the Oregon Closing) will not be deemed a
breach or violation of the Agreement unless, in reasonably construing the
provisions hereof and thereof, the context clearly indicates otherwise.
Except as set forth in or expressly contemplated by this Amendment, the
Agreement has not been modified and remains in full force and effect.
7. Miscellaneous.
a. This Amendment is governed by and shall be construed in accordance
with the laws of the State of Oregon without reference to its choice
of law rules.
b. This Amendment may be executed in one or more counterparts, each of
which shall be considered an original instrument, but all of which
shall be considered one and the same agreement, and shall become
binding when one or more counterparts have been signed by each of the
Parties and delivered to each of the Parties.
c. If any Party initiates any litigation against the other Party
involving this Amendment, the prevailing Party in such action shall be
entitled to receive reimbursement from the other Party for all
reasonable attorneys' fees and other costs and expenses incurred by
the prevailing Party in respect of that litigation, including any
appeal, and such reimbursement may be included in the judgment or
final order issued in that proceeding.
d. All other terms and conditions set forth under the Agreement, unless
otherwise specifically referenced herein, shall remain in effect and
be given full consideration.
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IN WITNESS WHEREOF, the parties hereto have caused this SECOND AMENDMENT
AND AGREEMENT REGARDING ASSET PURCHASE AGREEMENT to be executed as of the day
and year first above written.
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XXXXXX RADIO REGIONAL GROUP, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
LA GRANDE BROADCASTING, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
EBC BOISE, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
EBC POCATELLO, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
EQUITY BROADCASTING CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Executive Vice President
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