Exhibit 10.1
AMENDMENT AND AGREEMENT REGARDING
ASSET PURCHASE AGREEMENT
This Amendment and Agreement Regarding Asset Purchase Agreement ("Amendment") is
entered into as of May 1, 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 (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 ("Parties") have determined to amend the Agreement so
that the Idaho Closing (pursuant to which the Idaho Stations (i.e., XXXX XX,
KUNP, LP and the Construction Permit Stations ) will be sold and transferred to
Buyer) is not conditioned upon the Oregon Closing and the Oregon Closing may be
deferred.
C. In connection with the deferral of the Oregon Closing, Xxxxxx
Broadcasting - Portland TV, L.L.C. ("KATU"), La Grande and WatchTV are
negotiating a Joint Sales Agreement (the "Portland JSA"), under which KATU would
serve as the exclusive sales representative of La Grande and WatchTV with
respect to advertising time on certain television stations, including the Oregon
Stations.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Idaho Closing. Notwithstanding Section 2.4 or any other provision in the
Agreement to the contrary, including those in Articles 7 and 8 of the
Agreement, (i) the Idaho Closing shall occur on or as soon as practicable
after the date hereof, but in no event later than May 15, 2006, (ii) the
failure of the Oregon Closing to occur will have no effect on the Idaho
Closing, and (iii) the Idaho Closing shall not be unwound or otherwise
rescinded as a result of such failure. In connection with the Idaho
Closing, the parties agree and confirm, and the Agreement is hereby
amended, to reflect the following:
a. At the Idaho Closing, the Equity Entities and Buyer shall jointly
instruct the Deposit Escrow Agent to deliver the Deposit to Seller
pursuant to Section 2.5(a) of the Agreement, and such delivery shall
serve as payment in full of the Purchase Price for the Idaho Closing.
b. The provisions of Section 2.7 (Payment of Purchase Price) of the
Agreement are hereby amended in their entirety so that,
notwithstanding anything to the contrary therein, (i) the Indemnity
Deposit will not be delivered at the first Closing to occur, (ii) the
Indemnity Deposit will instead be delivered at the Oregon Closing to
the Indemnity Escrow Account that will be administered by the
Indemnity Escrow Agent in accordance with the Indemnity Escrow
Agreement, (iii) $500,000 of the Purchase Price for the Oregon
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Closing will be paid to La Grande pursuant to the Portland JSA as a
nonrefundable prepayment of the fees due to La Grande thereunder (the
"JSA Deposit") and at Closing, any excess amount of the JSA Deposit
will be applied towards the Purchase Price at the Oregon Closing, (iv)
upon execution of this Amendment, $3,500,000 of the Purchase Price
will be paid as a nonrefundable (except as otherwise provided in
Section 2 of this Amendment) consideration for the extension of the
Oregon Closing ("Extension Consideration") via a wire transfer to an
account designated by La Grande, and (v) at the Oregon Closing, Buyer
shall pay the Purchase Price for the Oregon Closing, minus the
Indemnity Deposit, any excess amount of the JSA Deposit and the
Extension Consideration, by wire transfer to an account designated by
the Equity Entities.
c. For purposes of the Idaho Closing, the FCC Consent closing condition
in Sections 7.3 and 8.3 of the Agreement shall be satisfied if such
FCC Consent has been granted with respect to the Idaho Stations,
regardless of whether such consent has been granted with respect to
the Oregon Stations.
d. References in Section 9.6 of the Agreement to the "Closing Date"
following which the Indemnity Deposit will be released, are references
to the date on which the Oregon Closing occurs and not the date on
which the Idaho Closing occurs.
2. Oregon Closing. Notwithstanding Section 2.4 or Section 10.1(viii) or any
other provision in the Agreement to the contrary, if all conditions to set
forth in Articles 7 and 8 with respect to the Oregon Closing are satisfied,
Buyer may nonetheless defer the Oregon Closing until September 30, 2006. If
the Oregon Closing does not occur on or prior to September 30, 2006, then
the Equity Entities or Buyer may terminate the Agreement by written notice
to each other; provided, further, however, that the right to terminate the
Agreement in accordance herewith shall not be available (i) to any Party
whose failure to fulfill any obligation 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, or (ii) to the Equity Entities
in the event that Buyer has exercised its rights to delay the Closing
pursuant to Section 11.12 of the Agreement. Notwithstanding any other
provisions set forth herein and in the Agreement to the contrary, if the
Oregon Closing fails to occur on or before September 30, 2006, then the
Extension Consideration shall remain the sole property of the Equity
Entities; provided, however, that 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), the Extension Consideration shall be returned to
Buyer.
3. Transition Services by Equity. For ninety (90) days following the Idaho
Closing, Equity will provide transitional assistance and services so as to
enable the continued, uninterrupted broadcast of the Idaho Stations. Such
assistance will include the following: (i) master control services
(including equipment and personnel) at Equity's master control facility in
Little Rock, Arkansas; (ii) uplink and satellite delivery; (iii) local
advertising insertion at the master control facility for the Idaho
Stations' network feeds; and (iv) a royalty-free OSI license and database
link. Buyer will pay Equity a monthly fee of $6,500 for such services,
which fee shall be paid in arrears within ten days following the end of the
month in which services are rendered.
4. 1031 Exchange. If Buyer elects the 1031 Exchange pursuant to Section 6.8 of
the Agreement, Buyer may assign the Agreement to any Person to the same
extent that Buyer could assign the Agreement under Section 6.8 thereof to a
Qualified Intermediary or an Exchange Accommodation Titleholder. Equity and
the Sellers will execute any necessary consents or other approvals that may
be reasonably requested by any such assignee.
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5. KPOU-LP Buildout. The Parties agree that pursuant to Buyer's request, a
modification application was filed to move KPOU-LP to the KATU tower site
in Portland, Oregon, BMPTTL-20060120ACF ("KPOU-LP Modification
Application"). Buyer agrees to be responsible for the construction of the
facilities specified in the KPOU-LP Modification Application at its sole
expense, and such construction shall be complete no later than August 20,
2006. In the event the Oregon Closing has not occurred by August 20, 2006,
Buyer agrees to assist Seller in filing and prosecuting the license
application to cover the KPOU-LP Modification Application and to enter into
a Lease Agreement with La Grande for use of the KATU tower site, pursuant
to the terms and conditions set forth under Section 5.6 of the Agreement.
6. Portland JSA. The Parties will use commercially reasonable efforts to
negotiate, execute and deliver the Portland JSA.
7. Reasonable Interpretation; No Other Changes. The Parties intend for the
Agreement to be interpreted in light of this Amendment such that actions
taken (or not taken) by the Parties in order to effect the Idaho 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.
8. 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 AMENDMENT AND
AGREEMENT REGARDING ASSET PURCHASE AGREEMENT to be executed as of the day and
year first above written.
XXXXXX RADIO REGIONAL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Finance
LA GRANDE BROADCASTING, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
EBC BOISE, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
EBC POCATELLO, INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Vice President
EQUITY BROADCASTING CORPORATION
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Executive Vice President
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