EX-10.1



 






AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT




     THIS AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT (“Amendment”) is made and entered
into as of January 6, 2006 (“Amendment Date”), by and among WDLP Broadcasting Company, LLC,
a Delaware limited liability company (“WDLP”), WDLP Licensed Subsidiary, LLC, a Delaware limited
liability company (“WDLP-Sub”), Robin Broadcasting Company, LLC, a Delaware limited liability
company (“Robin”) and Robin Licensed Subsidiary, LLC, a Delaware limited liability company
(“Robin-Sub”) (individually “Seller” and collectively “Sellers”), and Mega Media Holdings, Inc., a
Delaware corporation (“Mega Media”), and WDLP Licensing, Inc., a Delaware corporation (“Mega-Sub”
and, together with Mega Media, individually “Buyer” and collectively “Buyers”). Buyers and Sellers
are sometimes referred to in this Amendment individually as a “Party” and collectively as the
“Parties.”



     WHEREAS, Sellers and Mega Media previously entered into that certain Asset Purchase Agreement
dated effective July 12, 2005, as amended by Amendment No. 1 thereto dated as of September 19, 2005
and by Amendment No. 2 thereto dated as of October 19, 2005 (collectively, the “Asset Purchase
Agreement”);



     WHEREAS, the FCC has granted Form 316 applications filed by Mega Media and by reason thereof,
at the Closing Mega-Sub will be the assignee of the FCC Licenses and all other Assets will be
transferred and assigned to Mega Media;



     WHEREAS, Buyers have requested an extension of the Closing Date under the Asset Purchase
Agreement, and



     WHEREAS, in light of the foregoing, it is desirable and in the best interests of the Parties
that (i) Mega-Sub become one of the Buyers under the Asset Purchase Agreement and (ii) the Parties
agree on other matters related to the Closing Date, the Promissory Note and security for the
Promissory Note.



     NOW THEREFORE, IN RELIANCE upon the foregoing recitals and in consideration of the mutual
covenants set forth herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the Parties agree as follows:



     AM-1. Defined Terms; Scope of Amendment. Defined terms used in this Amendment shall
have the meanings set forth in the Asset Purchase Agreement unless otherwise expressly indicated
herein. Except as expressly set forth in this Amendment, the Asset Purchase Agreement shall remain
in full force and effect. In the event of any conflict between the terms and provisions of this
Amendment and the terms and provisions of the Asset Purchase Agreement, the terms and provisions of
this Amendment shall prevail.



     AM-2. Joinder of Mega-Sub. By its signature to this Amendment, Mega-Sub acknowledges
that it has become one of the Buyers under the Asset Purchase Agreement and that it is subject to
all of the provisions of the Asset Purchase Agreement applicable to the Buyer



 









 







thereunder. The Buyers acknowledge and agree that they are jointly and severally liable for
any and all obligations of the “Buyer” under the Purchase Agreement.



     AM-3. Purchase Price and Payment. The “Purchase Price” as defined in Section 1.3(a)
of the Asset Purchase Agreement is hereby amended to be Thirty-Seven Million Five Hundred Fifty
Thousand Dollars ($37,550,000.00) (comprised of the initial Purchase Price of $37,000,000, the
Extension Payment of $250,000 and $300,000 as additional consideration for the agreement of Sellers
to further extend the Closing Date as herein provided). The Purchase Price has been and shall be
paid to Sellers as follows (and to the extent inconsistent with the provisions of sub-sections (i)
through (v) of Section 1.3(a) of the Asset Purchase Agreement, the provisions below shall control):




	 	(i)	 	Sellers acknowledge receipt of the Initial Deposit of Five
Hundred Thousand Dollars ($500,000). On January 6, 2006, Buyers shall pay to
Sellers additional cash in the amount of One Million Three Hundred Thousand
Dollars ($1,300,000.00) in immediately available funds by confirmed wire
transfer to one or more bank accounts designated by WDLP, which amount shall be
treated as part of the Initial Deposit.
	 
	 	(ii)	 	Buyers shall pay at the Closing the cash amount of Seventeen
Million Dollars ($17,000,000.00) (not including the Initial Deposit or the
Extension Payment), plus or minus any Adjustment Items agreed upon by the
Parties at the Closing in accordance with Section 1.7 hereof, in immediately
available funds by confirmed wire transfer to such bank accounts and in such
amounts designated by Sellers (such designation to occur no later than the
second business day prior to the Closing Date as required under Section 1.4
below).
	 
	 	(iii)	 	At Buyers’ written election, at the Closing Buyers shall
either (A) execute and deliver to Sellers a Secured Promissory Note in the
principal amount of Eighteen Million Five Hundred Thousand Dollars
($18,500,000.00) in the form attached hereto and made a part hereof as
Exhibit A (the “Promissory Note”), which shall also be executed by
Parent, together with a Security Agreement respecting the Promissory Note in
the form attached hereto and made a part hereof as Exhibit B (the
“Security Agreement”), and a Pledge Agreement respecting the Promissory Note in
the form attached hereto and made a part hereof as Exhibit C (the
“Pledge Agreement”); or (B) pay an additional cash amount of Eighteen Million
Five Hundred Thousand Dollars ($18,500,000.00) in immediately available funds
by confirmed wire transfer to such bank accounts and in such amounts designated
by Sellers (such designation to occur no later than the second business day
prior to the Closing Date as required under Section 1.4 below).
	 
	 	(iv)	 	Sellers acknowledge receipt of the Extension Payment of
$250,000.




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	 	(v)	 	All funds so paid to Sellers as the Initial Deposit (including
the additional amount to be paid to Sellers pursuant to this Amendment) and the
Extension Payment shall be credited against the Purchase Price in the event of
a successful Closing or shall otherwise be subject to the provisions of
Sections 1.3(b), 1.3(c) and 9.5 below.





     AM-4. Parties to and Modification of Promissory Note and Security Agreement. The
Promissory Note and the Security Agreement have been modified to (i) add Mega-Sub as an additional
Maker of the Promissory Note and as an additional Debtor under the Security Agreement, (ii) change
the amount thereof to be $18,500,000 and (iii) make other changes which have been agreed to among
the Parties. Accordingly, the Promissory Note shall be in the form attached hereto as Exhibit
A (which shall supersede the original Exhibit A to the Asset Purchase Agreement) and the
Security Agreement shall be in the form attached hereto as
Exhibit B (which shall supersede
the original Exhibit B to the Asset Purchase Agreement).



     AM-5. New Pledge Agreement. The Parties agree that the Promissory Note shall be
further secured pursuant to the terms and conditions of a Pledge Agreement in the form of
Exhibit C attached hereto (“Pledge Agreement”) (and designated as Exhibit C as a
replacement for the Guaranty on the Exhibits List to the Asset Purchase Agreement). Section
10.1(a) of the Asset Purchase Agreement shall be modified by substituting the term “Pledge
Agreement” for the term “Guaranty” (wherever the term “Guaranty” appeared in said Section prior to
its deletion in Amendment No. 2 to the Asset Purchase Agreement). Previously deleted Section
8.3(g) of the Asset Purchase Agreement is hereby added back in, and shall read as follows:



"(g) If, and only if, Buyer elects to pay part of the Purchase Price by the
execution and delivery of the Promissory Note as contemplated in Section
1.3(a)(iii)(A) above, Mega Media shall execute and deliver to Sellers the
Pledge Agreement.”



     AM-6. Collateral Assignment. Buyers acknowledge that (i) effective as of the Closing
Date Sellers may assign the Promissory Note, Security Agreement, Pledge Agreement and all other
Loan Documents (as defined in the Promissory Note) to Wells Fargo Foothill, Inc. (“Agent”),
in its capacity as administrative agent for certain lenders of Sellers, for the purpose of
providing additional collateral for loans made by such lenders to Sellers; (ii) such assignment to
Agent does not require the consent of Buyers or Parent; (iii) one of the documents which will
evidence such assignment to Agent will be an Assignment of Note and Collateral Documents (the
“Assignment”); and (iv) notwithstanding that Sellers are not required to obtain the consent
of Buyers to the Assignment, the Assignment prepared by Agent requires Buyers and Parent to sign
the last page thereof (the “Consent”) which provides as follows (as used below, SBS Note
means the Promissory Note and SBS Transaction Documents means the Loan Documents):



“The undersigned hereby (i) expressly acknowledges and consents to
the foregoing Assignment as of the date first above written, and
(ii) grants to Agent express permission to exercise all rights and
remedies under the SBS Note and each of the other SBS Transaction
Documents pursuant to the terms of the Assignment.”



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     If Sellers decide to assign the Promissory Note and each of the other Loan Documents to Agent (or
to any other Person), Buyers agree to execute the Consent in substantially the form as provided
above, and to cause Parent to do so as well, and to deliver the fully executed Consent as one of
the Ancillary Documents at the Closing. Sellers agree to provide Buyers with a copy of the final
form of the Assignment and the Consent no later than five (5) business days prior to the Closing.



     AM-7. Certain Revised Schedules. The following revised Schedules, which are part of
the Disclosure Schedule to the Asset Purchase Agreement, are hereby either amended or superseded by
the forms attached hereto:



	 	 	 
	Schedule 1.1(a)

	 	FCC Licenses [superseded]
	Schedule 1.1(c)

	 	Tangible Personal Property [amended]
	Schedule 1.1(f)

	 	Personal Property Leases [amended]
	Schedule 1.1(g)

	 	Contracts [amended]
	Schedule 1.2(m)

	 	Excluded Assets
	Schedule 1.4

	 	Allocation of Purchase Price [superseded]
	Schedule 2.5(d)

	 	Required Consents [amended]
	Schedule 2.9(e)

	 	Carriage Systems [superseded]






     AM-8. New Lease/License Agreements.



          (a) Sections 8.2(e) and 8.3(b) and Exhibit I of the Asset Purchase Agreement are hereby
deleted in their entirety. Buyers agree that Mega Media will negotiate a direct agreement with
GlobeCast North America Incorporated and the same will be pre-signed by Mega Media on or before
January 12, 2006, subject to and pending the Closing.




          (b) Section 8.2(f) of the Asset Purchase Agreement is hereby deleted in its entirety. Buyers
acknowledge, represent and warrant that Mega Media has negotiated a direct agreement with American
Tower LP in a form acceptable to Buyers and the same has been pre-signed by Mega Media subject to
and pending the Closing.




          (c) In connection with Section 8.2(g) of the Asset Purchase Agreement, Buyers acknowledge,
represent and warrant that Mega Media has negotiated the site lease with Adolphus-Warfield, Inc. in
a form acceptable to Buyers and the same has been pre-signed by Mega Media subject to and pending
the Closing.




          (d) Buyers further acknowledge, represent and warrant that Buyers have obtained or will obtain
prior to the Closing any and all other third party approvals, arrangements and agreements Buyers
may determine to be necessary for the operation of the Stations, and Sellers shall not have any
further obligations or responsibilities with respect to obtaining any such third-party
approvals, arrangements or agreements (including, without limitation, approvals from or
arrangements or agreements with Comcast).




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     AM-9. Landlord Waivers and Consents. To the extent not obtained prior to the Closing,
following the Closing Mega Media shall use commercially reasonable efforts to execute and obtain a
Landlord Waiver and Consent, in such commercially reasonable form as is provided by Sellers and
approved by Mega Media in its reasonable discretion, from each landlord under the new
leases/licenses Mega Media is entering into as of the Closing with Adolphus-Warfield, Inc. and with
American Tower L.P. (as described in Sections AM-8(b) and AM-8(c) above).



     AM-10. Closing. The first paragraph of Section 8.1 of the Asset Purchase Agreement is
hereby deleted in its entirety and replaced by the following:



“8.1 Closing; Closing Date. The closing of the transactions contemplated
hereby, including the deliveries required under Sections 8.2 and 8.3 below
(the “Closing”), shall take place at the offices of Buyer at 2601 South
Bayshore Drive, PH#2, Coconut Grove, Florida 33133, or at such other place
as is mutually agreed, at 10:00 a.m., local time, on February 28, 2006.
Notwithstanding any earlier or later time of the Closing, the “Closing Date”
shall for all purposes of this Agreement be deemed to be at 12:01 a.m.
Eastern Daylight or Standard Time, as the case may be, on March 1, 2006.
All Closing transactions shall be deemed to have occurred simultaneously.
On or before January 12, 2006, the Sellers and Buyers shall execute all of
the Ancillary Documents (other than the Promissory Note) and deliver all
executed copies thereof and all other deliveries required for the Closing,
other than the Purchase Price (i.e., the cash and Promissory Note, which
shall be delivered at the Closing), to Donald H. Jones, Esq., of Jones,
Kaufman & Ackerman LLP, counsel for Sellers, to be held “in trust” pending
the Closing. All Ancillary Documents shall be dated as of March 1, 2006,
unless the context of the same allows for or requires a different date
(e.g., Board of Director’s resolutions).”



     AM-11. Termination. Section 9.1(b) of the Asset Purchase Agreement is hereby deleted
in its entirety and replaced by the following:



     “(b) at any time after February 28, 2006 by Sellers or Buyers if the Closing
shall not have occurred on or before February 28, 2006;”



     In addition, Sections 9.1(d) and 9.1(e) shall be modified by changing the date of December 31, 2005
to February 28, 2006.



     AM-12. Counterparts; Fax Signatures. This Amendment may be executed in counterparts
and may be delivered by facsimile, and each such counterpart taken together shall constitute one
agreement. Any Party delivering its counterpart by facsimile agrees to deliver the original
thereof to the other Parties within five (5) business days thereafter.



[SIGNATURE PAGE FOLLOWS]




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     IN WITNESS WHEREOF, the Parties have executed this Amendment No. 3 to Asset Purchase Agreement as
of the Amendment Date.



	 	 	 	 	 
	 	SELLERS:





WDLP BROADCASTING COMPANY, LLC

 	 
	 	By:  	/s/  William C. De La Pena, M.D.
	 
	 	Name:  	William C. De La Pena, M.D. 	 	 
	 	Title:  	Manager 	 	 
	 
	 	WDLP LICENSED SUBSIDIARY, LLC

 	 
	 	By:  	/s/  William C. De La Pena, M.D.
	 
	 	Name:  	William C. De La Pena, M.D. 	 	 
	 	Title:  	Manager 	 	 
	 
	 	ROBIN BROADCASTING COMPANY, LLC

 	 
	 	By:  	/s/  William C. De La Pena, M.D.
	 
	 	Name:  	William C. De La Pena, M.D. 	 	 
	 	Title:  	Manager 	 	 
	 
	 	ROBIN LICENSED SUBSIDIARY, LLC

 	 
	 	By:  	/s/  William C. De La Pena, M.D.
	 
	 	Name:  	William C. De La Pena, M.D. 	 	 
	 	Title:  	Manager 	 	 
	 
	 	BUYERS:





MEGA MEDIA HOLDINGS, INC.

 	 
	 	By:  	/s/  Raúl
Alarcón, Jr.
	 
	 	Name:  	Raúl Alarcón, Jr. 	 	 
	 	Title:  	President/CEO 	 	 
	 
	 	WDLP LICENSING, INC.

 	 
	 	By:  	/s/  Raúl
Alarcón, Jr.
	 
	 	Name:  	Raúl Alarcón, Jr. 	 	 
	 	Title:  	President/CEO 	 	 
	 




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