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EXHIBIT 10.12
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
This SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Second
Amendment"), dated as of February 28, 1997, is entered into by and among Spanish
Broadcasting System, Inc., a Delaware corporation ("Buyer"), Raul Alarcon, Jr.,
New Age Broadcasting, Inc., a Florida corporation ("New Age"), and The Seventies
Broadcasting Corporation, a Florida corporation ("Seventies", and together with
New Age hereafter collectively referred to as the "Sellers").
R E C I T A L S
A. The Sellers have agreed to sell certain assets to Buyer pursuant to
an Asset Purchase Agreement, dated as of September 16, 1996 ("Purchase
Amendment"). The Purchase Agreement was amended as of December 26, 1996 to
permit Buyer additional time to obtain the cash funds necessary to be paid to
Sellers as the Purchase Price at the Closing ("First Amendment");
B. The Sellers were willing, able and ready to close as required by the
Purchase Agreement, as amended by the First Amendment, having met all of the
closing conditions. Buyer has requested a further extension of the Closing Date
to a date no later than April 15, 1997 in order to obtain the cash funds
necessary to be paid to Sellers as the Purchase Price at the Closing;
C. The parties to the Purchase Agreement and the First Amendment desire
to modify certain of the provisions of the Purchase Agreement and the First
Amendment as hereafter provided in this Second Amendment.
AGREEMENT
In consideration of the above recitals and of the mutual agreements and
covenants contained in this Second Amendment, the parties hereto, intending to
be bound legally, agree as follows:
1. The Recitals are true and correct.
2. Capitalized terms used herein but not otherwise defined shall have
the meaning ascribed to such terms in the Purchase Agreement and the First
Amendment. In addition, the term "Agreement" when used herein and in the
Purchase Agreement shall be deemed to include the Purchase Agreement as amended
by the First Amendment and the Second Amendment.
Initial Buyer /i/ Initial Sellers /i/
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3. Section 2.3(a) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"2.3 Purchase Price.
(a) The Purchase Price for the Assets shall be One
hundred eleven million dollars ($111,000,000). One hundred ten
million dollars ($110,000,000) of the Purchase Price shall be
paid by Buyer in full at the Closing by confirmed wire
transfer or transfers of immediately available funds pursuant
to wire instructions signed by at least two of Alan Potamkin,
Russell Oasis or Robert Potamkin; provided, however, that the
signature of only one of such individual shall be required if
the other two individuals are not alive or legally competent
on the Closing Date. $1,000,000 of the Purchase Price is being
pre-paid to Sellers contemporaneously with the execution and
delivery of the Second Amendment.
4. Section 2.3(c) (including Exhibit 2.3(c)) of the Purchase Agreement,
as amended by Section 2 of the First Amendment, is hereby deleted in its
entirety. The parties agree that any requirement of Broadcast Cash Flow
previously required by this Section 2.3(c) has been met by Sellers and is no
longer a requirement or obligation of the Sellers.
5. Execution of this Agreement by Buyer and Sellers shall be deemed the
irrevocable instruction of Buyer to deliver the $1,000,000 held in escrow by
Greenberg, Traurig, et al. to the Sellers. This sum is being made as a
prepayment of the Purchase Price, and in the event Buyer is unable to close on
or before April 15, 1997, as a deposit to be held by Sellers until Actual
Damages can be determined pursuant to Section 9.3 of the Purchase Agreement, as
amended by Section 10 of the First Amendment.
6. If Buyer fails to close on or before April 15, 1997 as required by
the Purchase Agreement, Buyer authorizes Russell Oasis to immediately return to
Sellers as of that date all property and employees of Sellers on loan to Buyer
pending the Closing.
7. Section 8.1(a) of the Purchase Agreement is hereby amended and
restated in its entirety to read as follows:
"8.1 Closing.
(a) Closing Date. The Closing shall take place at
10:00 a.m., Miami, Florida time, on March 24, 1997; provided,
however, that Buyer shall be permitted to extend the closing
date to a date and time no later than 10:00 a.m., April 15,
1997 by notifying Sellers in writing prior to March 24, 1997
that the closing will not take place on March 24, 1997 and by
delivering written notice to the Sellers of the new closing
date and time
Initial Buyer /i/ Initial Sellers /i/
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at least ten (10) business days prior to such proposed closing
date. If no such notice setting a new closing date is given
within the prescribed ten-day period, the new closing date and
time shall be April 15, 1997 at 10:00 a.m. TIME IS OF THE
ESSENCE WITH RESPECT TO THE CLOSING OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT. In the event that wire
transfer of the Purchase Price is received by each of the
Sellers later than 2:00 p.m., Miami, Florida time on the
Closing Date, then Sellers shall be entitled to interest on
the Purchase Price from the Closing Date to the next business
day following the Closing Date at a rate equal to the prime
rate as publicly announced on the Closing Date by Citibank,
N.A. as its prime rate. The Closing shall take place at the
offices of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A., Miami, Florida."
8. Section 9.1(c) of the Purchase Agreement, as amended by Section 8 of
the First Amendment, is hereby amended and restated in its entirety to read as
follows:
"(c) Upset Date. If the Closing shall not have occurred by
April 15, 1997."
9. Section 9.2(c) of the Purchase Agreement, as amended by Section 9 of
the First Amendment, is hereby amended and restated in its entirety to read as
follows:
"(c) Upset Date. If the Closing shall not have occurred by
April 15, 1997."
10. The date of "February 28, 1997" specified in Sections 9.3(b),
9.3(d) and 9.3(e) of the Purchase Agreement, as amended by Section 10 of the
First Amendment, is hereby amended to read "April 15, 1997."
11. The parties agree that the words "closing of the" shall be inserted
prior to the words "Default Sale" on line 21 of Section 9.3(d) of the Purchase
Agreement, as amended by Section 10 of the First Amendment. Otherwise, this
Section 9.3(d) shall remain unchanged.
12. In addition to and without limiting the foregoing, the parties
hereto respectively acknowledge, agree, represent and warrant as follows:
(a) the Letter of Credit and the ability of the Sellers to
draw the Face Amount thereof upon the occurrence of a default by Buyer as
provided in Section 9.3 (as amended by the First Amendment and the Second
Amendment) is not affected in any manner by this Second Amendment;
(b) all of the respective representations and warranties of
the Sellers and Buyer set forth in the Purchase Agreement, the First Amendment
and the Second Amendment
Initial Buyer /i/ Initial Sellers /i/
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are true, complete and correct in all material respects as of the date hereof
and, to the knowledge of each of the parties hereto, no event or circumstance
has occurred that would or may with the passage of time or otherwise (i)
constitute a breach of any of the provisions of the Purchase Agreement, the
First Amendment or the Second Amendment by any of the parties thereto or that
would or will cause any representation or warranty of any of the other parties
thereto to be untrue in any material respect now or at the Closing, (ii)
adversely affect the ability of either Buyer or the Sellers to close the
transaction contemplated by the Purchase Agreement, the First Amendment and the
Second Amendment. Further, as of the date hereof, each of the Sellers and Buyer
have, and, to the best of their knowledge, acknowledge and agree that each of
the other parties hereto have, performed and complied in all material respects
with all covenants, agreements and conditions (with the exception of the payment
of the Purchase Price by Buyer to Sellers) required by the Purchase Agreement,
the First Amendment and the Second Amendment to be performed or complied with by
any of them. Also, all Consents, the FCC Consent and the Tower Consents have
been previously obtained by Seller, delivered to Buyer and are satisfactory to
Buyer in all respects.
13. In the event of a conflict between any of the terms contained in
the Purchase Agreement or the First Amendment and any of the terms set forth in
this Second Amendment, the terms of this Second Amendment shall govern.
14. Except as hereby specifically amended by this Second Amendment, the
remaining terms and provisions of the Purchase Agreement and the First Amendment
shall remain unchanged and shall continue in full force and effect.
15. This Second Amendment may be executed in counterparts and may be
delivered via fax. Each page must be initialed by the parties.
[SIGNATURE PAGE FOLLOWS]
Initial Buyer /i/ Initial Sellers /i/
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IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Amendment to Asset Purchase Agreement as of the date and year first above
written.
Witness: SPANISH BROADCASTING SYSTEM, INC.
/s/ By: /s/ Raul Alarcon, Jr.
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Raul Alarcon, Jr.
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NEW AGE BROADCASTING, INC.
/s/ By: /s/ Russell A. Oasis
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Russell A. Oasis, President
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THAT SEVENTIES BROADCASTING
CORPORATION
/s/ By: /s/ Russell A. Oasis
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Russell A. Oasis, President
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/s/ /s/ Raul Alarcon, Jr.
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Raul Alarcon, Jr.
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