Exhibit 10.22
AMENDMENT NO. I TO ASSET EXCHANGE AGREEMENT
--------------------------------------------
This Amendment (this "Amendment") to the Asset Exchange Agreement
dated as of August 31, 2000 (the "Exchange Agreement") is made as of April 30,
2001 among CUMULUS BROADCASTING INC., a Nevada corporation ("CBI"), CUMULUS
WIRELESS SERVICES, INC., a Nevada corporation ("CWS"), CUMULUS LICENSING CORP.,
a Nevada corporation ("CLC"; and together with CBI and CWS hereinafter referred
to collectively as "Cumulus"), the MYRTLE BEACH STATIONS TRUST (the "Trust"), a
South Carolina trust established pursuant to a certain Myrtle Beach Stations
Trust Agreement, dated as of April 19, 2000, between NMG (as hereinafter
defined) and the Trust and NEXTMEDIA OPERATING, INC., a Delaware corporation
("NextMedia").
Recitals
--------
WHEREAS, NextMedia, the Trust, CBI, CWS and CLC have entered into the
Exchange Agreement relating to the like-kind exchange of radio stations WYAK-FM,
Surfside Beach, South Carolina (the "Trust Station"), WQSL-FM, Jacksonville,
North Carolina ("WQSL") and WXQR-FM, Jacksonville, North Carolina ("WXQR"; and
together with WQSL hereinafter referred to collectively as, the "Cumulus
Stations");
WHEREAS, prior to the purchase of the Trust Station by NextMedia Group
II, a Delaware corporation ("NMG") and predecessor of NextMedia, the Trust
Station had been owned by a number of different entities, one of which was ▇▇▇▇▇
Eastern of the Grand Strand, WYAK-AM-FM Radio ("▇▇▇▇▇ Eastern");
WHEREAS, NMG did not purchase the Trust Station directly from ▇▇▇▇▇
Eastern;
WHEREAS, certain federal taxes have been assessed against ▇▇▇▇▇
Eastern (the "Taxes") which ▇▇▇▇▇ Eastern has not paid, and the Taxes, together
with interest thereon, penalties, costs and other additions to the Taxes
(collectively, the "Tax Liabilities"), remain due and payable;
WHEREAS, federal tax liens (the "Tax Liens") have arisen and currently
exist in favor of the United States;
WHEREAS, notices of the Tax Liens were filed with the office of the
North Carolina Secretary of State, replications of which are attached as Exhibit
-------
A, showing a North Carolina address for ▇▇▇▇▇ Eastern;
-
1
WHEREAS, the assets which are subject to the Tax Liens have been
replaced with new assets (the "Exchanged Assets") which are being sold to
Cumulus pursuant to the Exchange Agreement; and
WHEREAS, the assets being sold to Cumulus pursuant to the Exchange
Agreement, including WYAK-FM, currently are located in the State of South
Carolina.
Agreement
---------
NOW THEREFORE BE IT RESOLVED, that taking the foregoing into account,
and in consideration of the mutual covenants and agreements set forth herein,
the parties, intending to be legally bound, hereby agree to amend the Exchange
Agreement as follows:
Article 9 hereby is amended to add the following representation by NextMedia:
----------------------------------------------------------------------------
9.7 Tax Liabilities. The assets which are subject to the Tax Liens
---------------
(as such term is defined herein) have been replaced with the Exchanged Assets
(as such term is defined herein) which are being sold to Cumulus pursuant to the
Exchange Agreement. NextMedia further represents and warrants that the Exchanged
Assets being sold to Cumulus are not subject to the Tax Liens.
Article 10 hereby is amended to add the following representation by the Trust:
-----------------------------------------------------------------------------
10.17 Tax Liabilities. The assets which are subject to the Tax Liens
---------------
have been replaced with the Exchanged Assets which are being sold to Cumulus
pursuant to the Exchange Agreement. The Trust further represents and warrants
that the Exchanged Assets being sold to Cumulus are not subject to the Tax
Liens;
Section 18.2 hereby is amended as follows:
-----------------------------------------
18.2. Indemnification.
---------------
(b) From and after the Closing, NextMedia and the Trust shall
defend, indemnify and hold harmless Cumulus from and against any and all Damages
incurred by Cumulus arising out of or resulting from: (i) any material breach or
material default by NextMedia or the Trust under the Exchange Agreement or any
other document or amendments delivered pursuant thereto, including but not
limited to, this Agreement; (ii) the Trust Retained Obligations or the business
or operation of the Trust Station before Closing; or (iii) the NextMedia Assumed
Obligations or the business or operation of the Cumulus Stations after Closing;
provided, however, that, except for the Expense Provisions (which shall not be
subject to such limitations), (i) neither NextMedia nor the Trust shall have
liability to Cumulus
2
hereunder until, and only to the extent that, Cumulus's aggregate Damages exceed
$50,000 and (ii) the aggregate maximum liability of NextMedia and the Trust
hereunder shall be $500,000.00. The parties acknowledge that this
indemnification applies to the Agreement as amended hereby.
FURTHER RESOLVED, that this Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY OMITTED]
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
CUMULUS BROADCASTING, INC.,
a Nevada corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
CUMULUS WIRELESS SERVICES, INC.,
a Nevada corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
CUMULUS LICENSING CORP.,
a Nevada corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
NEXTMEDIA OPERATING, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary
MYRTLE BEACH STATIONS TRUST,
a South Carolina Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
4