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EXHIBIT 10.1.2
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is
made and entered into as of March 14, 1997, between Emerald City Radio
Partners, L.P., a limited partnership ("Seller"), and WNOK Acquisition Company,
Inc. ("Buyer"), a Delaware corporation ("Buyer"), and amends that certain Asset
Purchase Agreement between the Seller and the Buyer dated as of March 10, 1997
(the "Asset Purchase Agreement"). This Amendment is made pursuant to Section
12.3 of the Asset Purchase Agreement. Terms used herein and not otherwise
defined have the meanings ascribed to them in the Asset Purchase Agreement.
All references to sections, subsections, clauses, and page numbers are to the
respective sections, subsections, clauses, and pages of the Asset Purchase
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Any and all references to Exhibit A, including the one contained
on page (iv) in the Table of Contents, are hereby deleted.
2. New Schedule 1.1, attached hereto as Exhibit I, is added to the
Asset Purchase Agreement, and the following reference is added to page (iv) in
the Table of Contents:
"Schedule 1.1 -- Acceptable Assignees"
3. The following definitions are added to Section 1.1:
"'Acceptable Assignee' means any Person listed on Schedule 1.1.
'Assignment Amendment' has the meaning set forth in Section
12.14.
'Consent Assignee' has the meaning set forth in Section 12.14.
'New Asset Purchase Agreement' has the meaning set forth in
Section 12.14."
4. The definition of "Xxxxxxx Money" contained in Section 1.1 is
hereby amended in its entirety to read as follows:
"'Xxxxxxx Money' means the sum of $75,000 in cash held in
accordance with the provisions of the Deposit Escrow Agreement."
5. Section 10.1(d) is hereby amended in its entirety to read as
follows:
"(d) by Seller, if Buyer breaches Section 2.7(a)."
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6. Notwithstanding anything contained in the Asset Purchase
Agreement or in any Transaction Document to the contrary, Seller will deliver
to Buyer concurrently with the execution of this Amendment one FCC Form 314
with respect to each of (a) WNOK and (b) WOIC and WMFX. Buyer agrees that it
will not file such Forms 314 with the FCC prior to April 7, 1997.
7. The following new Section 8.2(i) is hereby added to the Asset
Purchase Agreement:
"(i) If Buyer exercises its right to assign this Agreement, or
any part hereof, to an Acceptable Assignee or Consent Assignee pursuant
to Section 12.14(b), the closing contemplated by such assignment shall
have occurred prior to or contemporaneously with the Closing hereunder."
8. Section 12.14 is hereby amended in its entirety to read as
follows:
"12.14 ASSIGNMENT.
(a) Neither this Agreement nor any of the rights, interests,
or obligations hereunder shall be assigned by any of the parties hereto,
whether by operation of law or otherwise; provided, however, that (i)
upon notice to Seller and without releasing Buyer from any of its
obligations or liabilities hereunder, Buyer may assign or delegate any
or all of its rights or obligations under this Agreement to any
Affiliate thereof, and (ii) nothing in this Agreement shall limit
Buyer's ability to make a collateral assignment of its rights under this
Agreement to any institutional lender that provides funds to Buyer
without the consent of Seller. Seller shall execute an acknowledgment
of such assignment(s) and collateral assignments in such forms as Buyer
or its institutional lenders may from time to time reasonably request;
provided, however, that unless written notice is given to Seller that
any such collateral assignment has been foreclosed upon, Seller shall be
entitled to deal exclusively with Buyer as to any matters arising under
this Agreement or any of the other agreements delivered pursuant hereto.
In the event of such an assignment, the provisions of this Agreement
shall inure to the benefit of and be binding on Buyer's assigns.
(b) Notwithstanding Section 12.14(a), Buyer may (i) at any
time, without consent of Seller, assign all or any part of its rights,
liabilities, and obligations hereunder with respect to any one or more
of the Stations to a designated Acceptable Assignee, and (ii) assign all
or any part of its rights, liabilities, and obligations hereunder with
respect to any one or more Stations to any Person (a "Consent Assignee")
with the prior consent of Seller, such consent not to be unreasonably
withheld. In the case of any assignment under this Section 12.14(b),
Buyer shall have the right to direct Seller to transfer, assign, or
convey any and all assets specified to such Acceptable Assignee or
Consent Assignee at the Closing, and Seller shall, without further
expense to Seller, transfer, assign and convey such assets to such
Acceptable Assignee or Consent Assignee, as applicable, at the Closing.
Finally, in the event of such assignment and upon Buyer's request to
Seller and without further expense to Seller, the
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parties hereto and the designated Acceptable Assignee or Consent
Assignee, as applicable, shall execute an amendment to this Agreement
(the "Assignment Amendment") and a new Asset Purchase Agreement (the
"New Asset Purchase Agreement"), respectively, each (w) reflecting the
occurrence of such assignment, (x) reflecting the existence of the other
agreement or amendment, (y) reflecting the respective assets to be
acquired thereunder, and (z) containing identical terms as are contained
herein; provided, however, that the dollar amounts to be contained in
Sections 2.5(b), 4.2, 7.7(c), 11.5, 11.6(a), and 12.7(b) of the
Assignment Amendment and the New Asset Purchase Agreement shall be
apportioned in the same ratio as the Purchase Price hereunder bears to
the purchase price payable under the Assignment Agreement and the New
Asset Purchase Agreement, respectively; provided, that the purchase
price to be paid under the Assignment Amendment and the New Asset
Purchase Agreement shall be determined by the Buyer and the Acceptable
Assignee or Consent Assignee, as applicable. In no event, however,
shall any amendment to this Agreement result in a change in the
aggregate purchase price payable to Seller hereunder.
(c) Upon any assignment hereunder, Seller will promptly make
any and all additional filings and obtain any and all Consents,
including the FCC Consents, as may be necessary to effectuate such
assignment and the transactions contemplated by the Assignment Amendment
and the New Asset Purchase Agreement."
9. Except as otherwise amended hereby, the Asset Purchase Agreement
shall continue to be in full force and effect in accordance with its terms.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to be
signed, all as of the date first written above.
SELLER:
EMERALD CITY RADIO PARTNERS, L.P.
By: Cyclone Communications
Corporation, its General Partner
By: /s/
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Name:
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Title:
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BUYER:
WNOK ACQUISITION COMPANY, INC.
By: /s/
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Name:
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Title:
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