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EXHIBIT 2.1.5
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT (the "First Amendment") to the Agreement and Plan of
Merger dated as of December 9, 1996 (the "Merger Agreement"), by and among
Benchmark Communications Radio Limited Partnership, a Maryland limited
partnership, Benchmark Acquisition, Inc., a Delaware corporation, Benchmark
Radio Acquisition Fund I Limited Partnership, a Maryland limited partnership,
Benchmark Radio Acquisition Fund IV Limited Partnership, a Maryland limited
partnership, Benchmark Radio Acquisition Fund VII Limited Partnership, a
Maryland limited partnership, Benchmark Radio Acquisition Fund VIII Limited
Partnership, a Maryland limited partnership, BCR Holding, Inc., a Delaware
corporation, Capstar Broadcasting Partners, Inc., a Delaware corporation
("Capstar"), Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx in their capacities as
Partner Representatives and as General Partners, Grand Slam Radio Limited
Partnership, a Maryland limited partnership and Home Run Radio Limited
Partnership, a Maryland limited partnership, as amended by that certain Side
Letter dated January 9, 1997, by and between Benchmark Communications Radio
Limited Partnership and Benchmark Acquisition, Inc. and that certain Side
Letter dated January 31, 1997, by and among the parties to the Merger
Agreement, Benchmark Radio Acquisition Fund IX Limited Partnership, Benchmark
Radio Acquisition Fund X Limited Partnership, and Benchmark Radio Acquisition
Fund XI Limited Partnership, is entered into effective July 1, 1997, by and
among the parties to the Merger Agreement and Capstar Broadcasting Corporation,
a Delaware corporation ("CBC").
RECITALS:
WHEREAS, the parties to the Merger Agreement wish to amend the
Merger Agreement and grant certain waivers and consents, as set forth herein;
WHEREAS, the stockholders of Capstar have effected an exchange
pursuant to which the outstanding capital stock of Capstar has been exchanged
for all of the outstanding capital stock of CBC;
WHEREAS, pursuant to such exchange, Capstar has become a
wholly owned subsidiary of CBC;
WHEREAS, the parties to the Merger Agreement desire to amend
the Merger Agreement as provided herein pursuant to Section 10.3 of the Merger
Agreement;
WHEREAS, the parties to the Merger Agreement desire to
replace the reference to Capstar in Sections 5.6 and 9.2(b) of the Merger
Agreement so that such reference shall be deemed to refer to CBC for all
purposes;
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WHEREAS, the parties to the Merger Agreement have agreed that
prior to the Closing Date each of Xxxxxxx and Xxxxxxx shall have the right, at
his individual option, to sell his Class B Limited Partnership interests in
Benchmark to Radioco IV, Inc., a Maryland corporation, in exchange for cash and
a promissory note, which note will be payable in full at Closing;
WHEREAS, the parties to the Merger Agreement have agreed that
upon the sale and assignment by Xxxxxxx and Xxxxxxx of their Class B Limited
Partnership interests in Benchmark to Radioco IV, Inc., Radioco IV, Inc. shall
guarantee the liabilities and obligations of each of Xxxxxxx and Xxxxxxx under
the Merger Agreement, provided, that such guarantee shall, in the aggregate,
not exceed the Merger Consideration received and held by Radioco IV, Inc.
pursuant to the Merger Agreement, provided further, that such guarantee by
Radioco IV, Inc. shall be diminished by the amount of Merger Consideration
disbursed to Xxxxxxx or Xxxxxxx pursuant to the promissory note executed by
Radioco IV, Inc. in favor of Xxxxxxx and Xxxxxxx, as payment for the Class B
Limited Partnership interests in Benchmark; and
WHEREAS, capitalized terms used and not defined herein shall
have the meanings assigned to such terms in the Merger Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and the
agreements herein contained, the parties hereto covenant and agree as follows:
1. The reference to Capstar in Section 9.2(b) of the
Merger Agreement shall hereby be deemed, as of and after the date hereof, to
refer to CBC for all purposes.
2. CBC hereby assumes and agrees to perform and
discharge all of Capstar's duties and obligations under Sections 5.6 and 9.2(b)
of the Merger Agreement that are to be performed after the date hereof.
3. Mergeco, Parent, Capstar and CBC hereby consent to
the sale and assignment by Xxxxxxx and Xxxxxxx, at their individual option, of
their Class B Limited Partnership interests in Benchmark to Radioco IV, Inc.,
subject to the condition that Radioco IV, Inc. shall guarantee the liabilities
and obligations of each of Xxxxxxx and Xxxxxxx under the Merger Agreement,
provided, that such guarantee, in the aggregate, need not exceed the Merger
Consideration received and held by Radioco IV, Inc. pursuant to the Merger
Agreement, provided further, that such guarantee by Radioco IV, Inc. may be
diminished by the amount of Merger Consideration disbursed to Xxxxxxx or
Xxxxxxx pursuant to the promissory note executed by Radioco IV, Inc. in favor
of Xxxxxxx and Xxxxxxx, as payment for the Class B Limited Partnership
interests in Benchmark.
4. Except as herein specifically amended or supplemented, the
Merger Agreement shall continue in full force and effect in accordance with its
terms.
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5. This First Amendment may be executed and delivered
(including by facsimile transmission) in one or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other parties, it being understood that all parties need not sign the
same counterpart.
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IN WITNESS WHEREOF, the parties have caused this First
Amendment to be duly executed, all as of the date first written above.
CAPSTAR BROADCASTING CORPORATION
/s/ XXXXXXX X. XXXXXXXX, XX.
------------------------------------
By: Xxxxxxx X. Xxxxxxxx, Xx.
Its: Executive Vice President
BENCHMARK ACQUISITION, INC.
/s/ XXXXXXX X. XXXXXXXX, XX.
------------------------------------
By: Xxxxxxx X. Xxxxxxxx, Xx.
Its: Executive Vice President
BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ XXXXX X. XXXXXXX
------------------------------------
By: Xxxxx X. Xxxxxxx
Its: General Partner
BCR HOLDING, INC.
/s/ XXXXXXX X. XXXXXXXX, XX.
------------------------------------
By: Xxxxxxx X. Xxxxxxxx, Xx.
Its: Executive Vice President
CAPSTAR BROADCASTING PARTNERS, INC.
/s/ XXXXXXX X. XXXXXXXX, XX.
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By: Xxxxxxx X. Xxxxxxxx, Xx.
Its: Executive Vice President
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BENCHMARK RADIO ACQUISITION FUND I
LIMITED PARTNERSHIP
By: BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
BENCHMARK RADIO ACQUISITION FUND IV
LIMITED PARTNERSHIP
By: BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
BENCHMARK RADIO ACQUISITION FUND VII
LIMITED PARTNERSHIP
By: BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
BENCHMARK RADIO ACQUISITION FUND VIII
LIMITED PARTNERSHIP
By: BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
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/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
/s/ XXXXXX X. XXXXXXX XX
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Xxxxxx X. Xxxxxxx XX
HOME RUN RADIO LIMITED PARTNERSHIP
By: HR Radio Corporation
Its: General Partner
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: President
GRAND SLAM RADIO LIMITED PARTNERSHIP
/s/ XXXXXXX XXXXXXX
-------------------------------------
By: Xxxxxxx Xxxxxxx
Its: General Partner
