EXHIBIT 10.2
AMENDMENT NO. 1 TO TIME BROKERAGE AGREEMENT
Amendment No. 1 dated as of February 8, 2002 to Time Brokerage
Agreement (the "Agreement") dated as of March 13, 2001 by and between
INTERNATIONAL CHURCH OF THE FOURSQUARE GOSPEL, a California nonprofit religious
corporation, as Licensee ("ICFG"), and SPANISH BROADCASTING SYSTEM, INC., a
Delaware corporation, as Broker ("SBS").
W I T N E S S E T H:
WHEREAS, the parties wish to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties intending to be legally bound, agree as
follows:
1. Capitalized terms used herein but not defined shall have
the meaning set forth in the Purchase Agreement (as defined below).
2. Section 1.2 is hereby amended in its entirety to read as
follows:
"1.2 EFFECTIVE DATE; TERM. The effective date of this
Agreement shall be the date of the signing of this
Agreement as set forth above ("Effective Date"). It
shall continue in force until the earlier to occur of
(a) a closing under the Asset Purchase Agreement
dated as of November 2, 2000, as amended, (the
"Purchase Agreement") and (b) termination of the
Purchase Agreement, whether by mutual consent or by
its terms. March 31, 2001 shall be the "Commencement
Date".
3. The last two sentences of Section 6.1 are hereby amended as
follows:
"In the absence of an earlier termination pursuant to
the provisions set forth above, this Agreement will
expire on December 31, 2003. Further, if this
Agreement is terminated due to a material uncured
breach or for failure to make the payments under this
Agreement due on March 12, 2002, September 30, 2002
or March 12, 2003, as provided in Attachment 1, the
Purchase Agreement shall also terminate."
4. Attachment 1 is hereby amended in its entirety to read as
follows:
"ATTACHMENT 1
TERMS AND CONDITIONS
(a) SBS has previously made a payment to ICFG of $25 million
as consideration under this Agreement. On March 12, 2002, SBS will make a
further payment of $15 million to ICFG by wire transfer of federal funds. On
September 30, 2002 SBS will make an additional payment of $5 million to ICFG by
wire transfer of federal funds (if the Closing under the Purchase Agreement has
not occurred and the Purchase Agreement has not been terminated). On March 12,
2003 SBS will make an additional payment of $15 million to ICFG by wire transfer
of federal funds (if the Closing under the Purchase Agreement has not occurred
and the Purchase Agreement has not been terminated).
(b) If (i) the Closing under the Purchase Agreement has not
occurred, (ii) the Purchase Agreement has not been terminated and (iii) the
payments due on March 12, 2002, September 30, 2002 or March 12, 2003 are not
received by 5:00 p.m. pacific time on such respective dates, this Agreement
shall end at midnight on such respective dates, and SBS shall have no right to
continue broadcasting over the facilities of Station. There is no grace period
or cure period for SBS's failure to make the specified payments on the dates
indicated.
(c) All payments made to ICFG by SBS, i.e., the $25 million
paid on March 13, 2001, the $15 million due to be paid on March 12, 2002, the $5
million due to be paid on September 30, 2002 and the $15 million due to be paid
on March 12, 2003 are non-refundable and are the exclusive property of ICFG
(provided, ICFG is not in material uncured breach of either this Agreement or
the Purchase Agreement); provided, however, such payments shall be applied
against the $250 million purchase price under the Purchase Agreement (the
"Purchase Price") and reduce the amount due at Closing by the aggregate amount
previously paid.
(d) Upon the execution of this Agreement, SBS will grant to
ICFG one or more transferable warrants exercisable for an aggregate of 2,000,000
shares of SBS Class A Common Stock (the "Class A Common Stock"), with an
exercise price of $10.50 per share, subject to standard anti-dilution for stock
splits, stock dividends, combinations, reclassifications and the like, and
containing a "net exercise" provision allowing ICFG to exercise the warrants in
exchange for relinquishment of shares for which the warrants would otherwise be
exercisable, based on the then-current fair market value of the shares. Such
warrants will be exercisable for a period of thirty-six months after the date of
their issuance after which they will expire if not exercised. At any time
subsequent to September 1, 2002 that ICFG ceases to operate under the 93.5 Time
Brokerage Agreement dated March 13, 2001, commencing the last day of such
calendar month, SBS will issue each month thereafter warrants exercisable for
100,000 shares of Class A Common Stock at an exercise price equal to the closing
price of SBS' shares on the last New York Nasdaq trading day of such month and
will continue to issue such warrants through and including the earlier to occur
of (i) the Closing under the Purchase Agreement and (ii) the termination of the
Purchase Agreement. Such warrants will be exercisable for a period of thirty-
six (36) months after the date of their issuance after which they will expire if
not exercised and
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will otherwise have the same terms as described above. SBS, at its expense, will
use its commercially reasonable best efforts and fully cooperate with ICFG to
cause the common stock issuable upon exercise of the warrants to be registered
under the Securities Act of 1933, as amended, prior to the time the warrants are
exercised, and in any event, will file registration statements and use its
commercially reasonable best efforts to cause the registration statements to be
effective as soon as practicable after the warrants become exercisable. Further,
SBS, at its sole expense, shall make all filings as may be required by any
governmental regulatory agency in connection with the authorization, issuance,
and exercise of the warrants described in this paragraph (d).
(e) Should SBS or its affiliates during the term of this
Agreement sell five of the following six radio stations: KXJO (FM), Alameda,
California, KTCY (FM), Denison, Texas, KXEB (AM), Sherman, Texas, KSAH (AM),
Universal City, Texas, KFSG (FM), Redondo Beach California, KFSB (FM), Ontario,
California, following the closing of the fifth station, SBS shall proceed as
soon as reasonably possible, but not later than sixty (60) days from such
closing and in no event later than December 31, 2003, to close the purchase of
radio station KXOL (FM), Los Angeles, CA as provided in the Purchase Agreement.
SBS's failure to close as provided herein shall constitute a material default
under the Purchase Agreement and this Agreement.
(f) SBS shall pay for all fees required in connection with any
governmental approvals under the Agreement and the Purchase Agreement, or in
connection with any modifications or amendments to the Purchase Agreement.
Further, all filings and renewals of filings required to transfer the licenses
of Station to SBS shall be made on a timely basis in order to close the sale of
Station under the Purchase Agreement no later than December 31, 2003.
(g) SBS represents that as of the date hereof, (i) it has
36,862,705 shares of Class A Common Stock and 27,795,500 shares of Class B
Common Stock outstanding, (ii) there are no outstanding agreements or
commitments (including the grant of any registration rights superior to those of
ICFG hereunder) which would prevent the issuance or exercise of the warrants
pursuant to paragraph (d) or the registration of the Class A Common Stock, (iii)
and it will have full corporate authority and approval to issue the warrants on
the date of issuance. SBS agrees that from the date hereof until the expiration
of the warrants, it will maintain sufficient authorized Class A Common Stock for
purposes of exercise of the warrants.
(h) In the event the Purchase Agreement is not consummated and
the Agreement is terminated, SBS agrees to transfer to ICFG all the Station's
tangible and intangible assets, including, but not limited to, call letters,
jingles and format rights used exclusively in the operations of the Station, as
well as all assets purchased for use exclusively in the operations of Station,
such as equipment located at the transmitter site, all free and clear of liens
and encumbrances of any kind. Further, in the event the Closing as provided
under the Purchase Agreement is not consummated, ICFG shall have the right to
negotiate employment agreements with the Station's employees, and to assume, at
ICFG's option, service agreements entered into
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by SBS in connection with the operation of the Station. Subject to the
foregoing, SBS shall retain ownership of all cash, security deposits, accounts
receivables and other like cash items.
5. Except as specifically amended hereby, the terms and
conditions of the Purchase Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have each caused this
Amendment to be duly executed as of the date first above written by their
respective officers thereunto duly authorized.
INTERNATIONAL CHURCH OF THE
FOURSQUARE GOSPEL
By: /s/ Paul C. Risser
---------------------------------
Name: Paul C. Risser
Title: President
By: /s/ Brent Morgan
---------------------------------
Name: Brent Morgan
Title: Treasurer
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Raul Alarcon, Jr.
---------------------------------
Raul Alarcon, Jr.
Title: President and Chief
Executive Officer
By: /s/ Joseph A. Garcia
---------------------------------
Joseph A. Garcia
Title: Executive Vice President
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