EXHIBIT 10.06.03.02
FIRST AMENDMENT TO THE ASSET PURCHASE AGREEMENT
This amendment ("Amendment") is dated this 22nd day of July 1996, by and between
AMERICAN RADIO SYSTEMS CORPORATION, a Delaware corporation ("Buyer") and COMMON
GROUND BROADCASTING, INC., an Oregon Corporation ("Seller").
WHEREAS, on March 28, 1996, Buyer and Seller entered into a Asset Purchase
Agreement ("Agreement") relating to the sale of certain assets relating to radio
station KDBX-FM, Banks, Oregon; and
WHEREAS, the Schedules of the Agreement contained clerical errors; and
WHEREAS, in connection with the sale contemplated by the Agreement, Seller
elects to participate in a tax deferred exchange ("Exchange") pursuant to
Internal Revenue Code (S)1031; and
WHEREAS, pursuant to the Internal Revenue Service regulations regarding the
Exchange, the Agreement shall be assigned to a qualified intermediary as defined
in IRC (S)1031; and
WHEREAS Buyer and Seller agree that certain portions of the Agreement shall
not be assigned to the qualified intermediary;
NOWTHEREFORE the parties agree as follows:
1. Unless defined herein all capitalized terms used in this Amendment
shall have the meaning given such term in the Agreement.
2. The Agreement shall be amended as follows:
2.1 Section 6.10 of the Agreement shall be deleted in its entirety.
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2.2 Schedule 3.4 shall be amended and restated as set forth on
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Exhibit "A" hereto.
2.3 Schedule 3.8 shall be amended and restated as set forth on
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Exhibit "B" hereto.
3. The effectiveness of this Amendment shall be expressly subject to and
conditioned upon the execution by Buyer and delivery by Buyer to Seller of the
Back Bay Agreement as set forth on Exhibit "C" hereto.
4. Except as expressly stated herein all terms and conditions of the
Agreement shall remain in full force and affect.
5. This Amendment may be executed in any number of counterparts and all
such counterparts shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this amendment as of the
date first stated above.
"SELLER"
COMMON GROUND BROADCASTING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx III
President, CEO
"BUYER"
AMERICAN RADIO SYSTEMS CORPORATION
By:
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Xxxxxx Xxxxx
President, CEO
EXHIBIT "A"
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SCHEDULE 3.4
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FCC LICENSES
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See attached.
EXHIBIT "B"
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SCHEDULE 3.8
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TRADEMARKS; TRADENAMES; COPY RIGHTS
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None.
EXHIBIT "C"
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BACK BAY AGREEMENT
This Agreement ("Agreement") is entered into on this __ of July, 1996 by and
between American Radio Systems Corporation, a Delaware corporation ("American")
and Common Ground Broadcasting, Inc., an Oregon corporation ("CGB").
WHEREAS American has heretofore delivered to CGB a true, correct and complete
copy of the agreement ("Back Bay Agreement") dated March 15, 1994, by and
between American and Back Bay Broadcasters, Inc., a Delaware corporation ("Back
Bay") as in effect on the date hereof.
WHEREAS, pursuant to the Back Bay Agreement, American has the freely
assignable right (a) at any time after August 31, 1998 to purchase (the
"Purchase Right") all of the business and assets of Back Bay, including without
limitation the WBNW Business (as defined in the Back Bay Agreement), and (b) of
first refusal (the "Right of First Refusal") in the event Back Bay desires to
sell, transfer or otherwise dispose of all or any material portion of the
business and assets of Back Bay, including without limitation the WBNW Business.
NOW THEREFORE, the parties, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, agree as follows:
1. CGB shall have the right (the "WBNW Purchase Right"), but not the
obligation, to purchase the WBNW Business for $6,000,000 by written notice (the
"Election Notice") given to and received by American at any time prior to
January 1, 1998. Anything herein to the contrary notwithstanding, if American
has not received the Election Notice prior to January 1, 1998, all rights of CGB
to purchase the WBNW Business shall cease and terminate and by of no further
force and effect.
2. The Election Notice shall constitute a representation that CGB is
ready, willing and able, and has the financial resources, to purchase the WBNW
Business for $6,000,000 and that it will negotiate in good faith with respect to
and execute and deliver a purchase and sale agreement on terms and conditions
customary with respect to similar transactions with American (or, at American's
discretion, with Back Bay) to purchase the WBNW Business. American agrees that
it will cooperate in all reasonable respects with CGB in order to enable it to
exercise the WBNW Purchase Right, including without limitation (a) advising CGB
promptly of American's receipt of any Asset Transfer Notice pursuant to the
provisions of Section 4.13 of the Back Bay Agreement, and (b) exercising any and
all of its rights under the Back Bay Agreement, including without limitation the
exercise by American of the Right of First Refusal and the Purchase Right.
3. CGB acknowledges and agrees that (a) American's rights with respect to
the Purchase Rights and the Right of First Refusal apply or may apply, as the
case may be, to all of the business and assets of Back Bay and, therefore,
American may be required to acquire
businesses and assets other than the WBNW Business in order to enable CGB to
exercise its WBNW Purchase Rights, and (b) the purchase price to be paid by
American pursuant to the exercise of (i) the Purchase Rights will be based on a
formula set forth in the Back Bay Agreement and (ii) the Right of First Refusal
will be based on a third party offer. Accordingly, American and CGB acknowledge
and agree that the amount required to be paid by American for the WBNW Business
may be more or less than $6,000,000 and that American will, therefore, be
required to pay any excess of the purchase price over $6,000,000, and will be
entitled to any excess of $6,000,000 over such purchase price.
4. American agrees that, in the event CGB purchases the WBNW Business
pursuant to the exercise of the WBNW Purchase Right, from and after the
consummation of such transaction, American will assume, at no expense to CGB,
fifty percent (50%) of the base rental fees payable under the WBNW tower site
lease between Back Bay and Fellsway Plaza Trust, dated December 14, 1987, as
amended to the date hereof (the "WBNW Tower Lease"), or any extension or renewal
therefore. CGB agrees that American shall have the right to manage, sublease and
develop the tower site covered by the WBNW Tower Lease so long as such
activities do not disrupt or interfere with, in either case in any material
manner, with the operations of the WBNW Business.
5. American acknowledges its right of specific performance with respect
to the purchase of the WBNW Business pursuant to Section 11.13 of the Back Bay
Agreement and agrees to use its best efforts to enforce, and to assist CGB in
enforcing, such rights to purchase the WBNW Business. American further agrees
not to take any action, and to use its best efforts not to allow any action to
take place, which would impair or abrogate its right to purchase the WBNW
Business pursuant to the Back Bay Agreement.
6. The parties recognize that the WBNW Business is of a special, unique
and extraordinary character. Accordingly, if CGB is unable to acquire the WBNW
Business by reason of American failing to have complied with its covenants under
this Agreement, CGB shall be entitled to bring an action against American for
damages or, in lieu of, and in substitution for any damages, to obtain specific
performance of the terms of this Agreement. In the event of any action to
enforce the provisions of this Agreement, CGB hereby waives the defense that
there is an adequate remedy at law.
IN WITNESS WHEREOF, the parties hereto have executed this amendment as of
the date first stated above.
"SELLER" "BUYER"
COMMON GROUND BROADCASTING, INC. AMERICAN RADIO SYSTEMS CORPORATION
By: By:
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Xxxxxx X. Xxxxxxxx III Xxxxxx Xxxxx
President, CEO President, CEO
