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EXHIBIT 10.9
SECOND AMENDMENT
THIS SECOND AMENDMENT (this "Amendment") is made as of July 17, 2000
among the companies designated as Clear Channel on the signature page hereto
(collectively "Clear Channel") and the companies designated as Exchange Party on
the signature page hereto (collectively, "Exchange Party").
Recital
Clear Channel and Exchange Party are parties to an Asset Exchange
Agreement (as amended, the "Exchange Agreement") and an Asset Purchase Agreement
(as amended, the "Purchase Agreement"), both dated March 5, 2000 and both
amended by an Amendment (the "First Amendment") dated June 5, 2000. Capitalized
terms used herein and not defined shall have the respective meanings set forth
in the Exchange Agreement or the Purchase Agreement, as applicable.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged and confirmed, the parties agree as
follows:
1. Amendments. The Exchange Agreement and the Purchase Agreement are
hereby further amended to:
(i) delete as Clear Channel Stations under the Exchange
Agreement the radio stations listed on Exhibit A attached hereto (the provisions
of which are incorporated into this Amendment);
(ii) add as a Clear Channel Station under the Exchange
Agreement KBED(FM), Shreveport, Louisiana ("KBED"), and provide that (a) all of
the Clear Channel Station Assets of KBED (excluding FCC authorizations) will be
transferred from Clear Channel to the Exchange Party in connection with the
closing of the transactions contemplated by the Exchange Agreement, (b) Clear
Channel and the Exchange Party agree to file promptly after the date hereof all
necessary applications and make all required filings with the FCC to obtain FCC
consent to the assignment of the FCC authorizations for KBED to the Exchange
Party, (c) the closing of the assignment of the FCC authorizations for KBED from
Clear Channel to the Exchange Party shall occur on a date designated by the
Exchange Party, but in any event within ten (10) business days after the initial
grant by the FCC of consent to assign such FCC authorizations for KBED to the
Exchange Party, and the Exchange Party shall pay to Clear Channel ten dollars
($10.00) in cash as additional consideration for such assignment and (d) prior
to the assignment of the FCC authorizations for KBED to Exchange Party, Clear
Channel shall have the right to use such assets of KBED as are owned by Exchange
Party and are necessary to operate KBED in compliance with FCC rules and
policies;
(iii) add the representation and warranty set forth on Exhibit
B attached hereto; and
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(iv) further adjust the Purchase Price under the Purchase
Agreement and the Cash Amount under the Exchange Agreement as set forth on
Exhibit C attached hereto (the provisions of which are incorporated into this
Amendment); provided, however, that the Deposit and liquidated damage amounts
under the Exchange Agreement and the Purchase Agreement are not changed, and
shall be determined without giving effect to this Amendment.
2. Miscellaneous. Except for the First Amendment and except as
expressly set forth herein, the Exchange Agreement and the Purchase Agreement
have not been further amended or modified and remain in full force and effect.
Any termination of either the Exchange Agreement or the Purchase Agreement shall
terminate the First Amendment, this Amendment and both such agreements. This
Amendment may be executed in separate counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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SIGNATURE PAGE TO SECOND AMENDMENT
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
CLEAR CHANNEL: CAPSTAR RADIO OPERATING COMPANY
CAPSTAR TX LIMITED PARTNERSHIP
By:
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Name:
Title:
EXCHANGE PARTY: CUMULUS BROADCASTING, INC.
CUMULUS LICENSING CORP.
CUMULUS WIRELESS SERVICES, INC.
By:
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Name:
Title:
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Exhibit A
The following radio stations are hereby excluded as Clear Channel
Stations for all purposes under the Exchange Agreement (including without
limitation for purposes of all representations, warranties and covenants with
respect to the Clear Channel Stations):
WNCE-FM, Palmyra, Pennsylvania
WNNK-FM, Harrisburg, Pennsylvania
WTCY(AM), Harrisburg, Pennsylvania
WTPA(FM), Mechanicsburg, Pennsylvania
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Exhibit B
Exchange Party hereby represents and warrants to Clear Channel that
Revised BCF (defined in the First Amendment) is not less than Stated BCF
(defined in the First Amendment), and that Exchange Party has delivered to Clear
Channel income statements and sales projections for the Exchange Party Stations
that confirm such broadcast cash flow (as defined in the First Amendment), that,
in the case of the income statements, are complete and correct, present fairly
the results of operations of the Exchange Party Stations for the periods covered
thereby in accordance with generally accepted accounting principles applied on a
basis consistent with that used to prepare Exchange Party's most recent audited
financial statements filed with the SEC, and in the case of the sales
projections, reflect Exchange Party's reasonable projections of the Exchange
Party Stations' sales performance for the period covered thereby.
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Exhibit C
The Aggregate Amount under the First Amendment is hereby deleted. The
Cash Amount under the Exchange Agreement shall be $91,647,000 and shall be
payable by Clear Channel to Exchange Party at Closing (and not by Exchange Party
to Clear Channel). The Stations under the Purchase Agreement are being exchanged
for Exchange Party Stations under the Exchange Agreement and no Purchase Price
is payable under the Purchase Agreement.
