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EXHIBIT 2.1.6
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Second Amendment (the "Amendment") to the Agreement and
Plan of Merger by and among Benchmark Communications Radio Limited Partnership,
Benchmark Acquisition, Inc., Benchmark Radio Acquisition Fund I Limited
Partnership, Benchmark Radio Acquisition Fund IV Limited Partnership, Benchmark
Radio Acquisition Fund VII Limited Partnership, Benchmark Radio Acquisition
Fund VIII Limited Partnership, Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, Capstar
Broadcasting Corporation (as assignee of Capstar Broadcasting Partners, Inc.),
BCR Holding, Inc., Grand Slam Radio Limited Partnership and Home Run Radio
Limited Partnership, dated as of December 9, 1996, as amended by that certain
Side Letter dated January 9, 1997, by and among the parties to the Merger
Agreement, 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 and by the First
Amendment to Agreement and Plan of Merger by and among the parties to the
Merger Agreement and Capstar Broadcasting Corporation, dated as of July 1, 1997
(as so amended, the "Merger Agreement") is entered into effective August 6,
1997.
WHEREAS, the parties to the Merger Agreement wish to amend the
Merger Agreement as provided herein (capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Merger Agreement);
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties agree as follows:
1. Benchmark has revised the amount of the Fund I Broadcast Cash Flow,
Fund IV Broadcast Cash Flow, Fund VIII Broadcast Cash Flow,
Statesville Broadcast Cash Flow, Xxxxxxx Broadcast Cash Flow and
Xxxxxxxxxx Broadcast Cash Flow from the amounts set forth on the BCF
Calculation as follows:
Fund I Broadcast Cash Flow: $1,042,009
Fund IV Broadcast Cash Flow: $2,816,211
Fund VIII Broadcast Cash Flow: $2,324,973
Xxxxxxx Broadcast Cash Flow: $1,761,330
Statesville Broadcast Cash Flow: $1,369,982
Xxxxxxxxxx Broadcast Cash Flow: $1,759,918
Mergeco and each of the other parties hereto consents to such
revision.
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2. Mergeco hereby waives the notice provisions set forth in Sections
1.6(g) and 1.8(e) of the Merger Agreement.
3. The parties agree that, notwithstanding Sections 1.6(g) and 1.6(h) of
the Merger Agreement, the Initial Closing Balance Sheet and the Closing
Balance Sheet shall be based on the consolidated balance sheet for each
of Benchmark, Fund I, Fund IV, Fund VII and Fund VIII, together with
their respective subsidiaries as of 11:59 p.m. on July 31, 1997, and
that such balance sheets shall include only current assets (other than
trade receivables), current liabilities (other than trade payables) and
long term liabilities. In addition, the parties agree that,
notwithstanding Sections 1.6(g) and 1.6(h) of the Merger Agreement, the
calculation of Initial Net Current Assets and Actual Net Current Assets
shall be made as of 11:59 p.m. on July 31, 1997, and that such
calculation shall not reflect any assets earned or liabilities incurred
after such time.
4. The number "60" is hereby replaced with the number "90" in the first
sentence of Section 1.6(h) of the Merger Agreement.
5. The first sentence of Section 1.8(a) of the Merger Agreement is hereby
amended by inserting the words "in an account of Partner
Representatives" before the words "for the benefit of" The last
sentence of Section 1.8(a) of the Merger Agreement shall be deleted
and replaced with the following sentence: "Following the Effective
Time, the Exchange Agent shall, pursuant to irrevocable instructions
delivered by Partner Representatives as soon as practicable after the
Effective Time, deliver cash equal in aggregate amount equal to the
Exchange Fund to holders of the Converted Partnership Interests as
specified by Partner Representatives in such instructions pursuant to
the terms of this Agreement out of the Exchange Fund."
6. Section 1.8(b) of the Merger Agreement is hereby amended by inserting
the words "in an account of Partner Representatives" after the words
"Post-Closing Escrow Agent."
7. Section 1.8(c) of the Merger Agreement is hereby amended by inserting
the words "in an account of Partner Representatives" after the words
"Post-Closing Escrow Agent."
8. The first sentence Section 1.12 of the Merger Agreement is hereby
amended by inserting the words "in an account of Partner
Representatives" immediately before the words "the Benchmark Allocable
Portion."
9. The first sentence of Section 1.13 of the Merger Agreement is hereby
amended by inserting the words "in an account of Partner
Representatives" after the words "Post-Closing Escrow Agent."
10. The definition of "Funded Debt" in the Merger Agreement is hereby
amended by deleting clause (ii) thereof.
11. The definition of "Unfunded Debt" in the Merger Agreement shall be
amended by adding the following sentence after the end of the first
sentence of such definition: "Unfunded
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Debt of a Person shall include capitalized lease obligations of such
Person and its subsidiaries." In addition, such definition shall be
amended by deleting the words "on the day immediately preceding the
Closing Date" and replacing them with the words "on July 31, 1997."
12. Section 6.9 of the Merger Agreement is amended by deleting the second
sentence and inserting the following sentence: "In order to allocate
the Benchmark Consideration for such purposes the parties agree that
an appraiser selected by Partner Representatives (which may be Bond &
Xxxxxx, Xxxxxx Xxxxxxxx or another appraiser reasonably acceptable to
the Surviving Partnership) will appraise the assets of Benchmark and
of each Fund as of the Closing Date."
13. The definition of "Parent Merger Loan" in the Merger Agreement is
hereby amended by replacing the word "Benchmark" with "BC Funds
Holdings Co., Inc., a wholly-owned subsidiary of Radioco III of
Delaware, Inc." In addition, for purposes of the Parent Merger Loan,
all references to "Benchmark Communications Radio Limited Partnership"
in Exhibit 5 to the Merger Agreement shall be replaced with references
to "BC Funds Holdings Co., Inc." Benchmark shall execute a guaranty of
the Parent Loan which is nonrecourse to any of the partners of
Benchmark.
14. The definition of "Partner Representatives" in the Merger Agreement is
hereby deleted and replaced with the following definition: "Partner
Representatives" means Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx XX in
their capacities as Trustees for the Benchmark Liquidating Trust, a
trust formed under the laws of Maryland.
15. The parties agree that (i) Partner Representatives shall cause to be
prepared in a timely manner all income tax returns (or portions
thereof) for Benchmark, the Funds and their respective subsidiaries
that relate to tax periods ending before the Closing Date, and for any
tax period commencing before and ending after the Closing Date, but
only with respect to the portion of such period up to but not
including the Closing Date and (ii) the Surviving Partnership (or its
affiliates) shall cause to be prepared and filed in a timely manner
all other tax returns (or portions thereof). The parties agree to
cooperate with each other to ensure that the tax returns contemplated
by this paragraph 7 are properly prepared and filed.
16. Exhibit 9 to the Merger Agreement will be replaced with the License
Agreement attached hereto as Annex A.
17. Each of the Assignment of New Funds Partnership Interests shall be
executed in the form of Annex B hereto, and, pursuant to such
Assignment of New Funds Partnership Interests, Xxxxx X. Xxxxxxx shall,
prior to the Effective Time, assign his limited partnership interest
in each of the New Funds to Country Heartlines, Incorporated.
18. Each of the parties hereto consents to the reclassification of certain
of the limited partnership interests owned by Benchmark in (i) the
Existing Funds (other than Fund VII) into Class A Limited Partnership
Interests of such Existing Funds and (ii) Fund VII into
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Class C Limited Partnership Interests and to the execution of the
amendments to the Other Benchmark Merger Agreements in the form of
Annex C hereto.
19. The parties agree that Xxxxxxx shall, effective as of the Effective
Time, resign as trustee of any Fund Pension Plans or Fund Employee
Benefit Plans with respect to which he serves in such capacity.
Xxxxxxx shall remain a trustee under such Fund Pension Plans or Fund
Employee Benefit Plans with respect to which he serves in such
capacity immediately prior to the Effective Time. The Surviving
Partnership shall replace Xxxxxxx as trustee under such plans with a
qualified replacement trustee as soon as practicable after the
Effective Time (and in any event no later than October 15, 1997), and
Xxxxxxx shall resign as trustee under such plans effective the date
that the replacement trustee is selected.
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IN WITNESS WHEREOF, the undersigned parties have caused this Amendment
to be signed, all as of the date first written above.
BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
Agreed to and Accepted,
BENCHMARK ACQUISITION, INC.
/s/ XXXXX XXXXXX
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By: Xxxxx Xxxxxx
Its: Vice President
BCR HOLDING, INC.
/s/ XXXXX XXXXXX
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By: Xxxxx Xxxxxx
Its: Vice President
CAPSTAR BROADCASTING CORPORATION
/s/ XXXXX XXXXXX
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By: Xxxxx Xxxxxx
Its: Vice President
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BENCHMARK RADIO ACQUISITION
FUND I LIMITED PARTNERSHIP
By: Benchmark Communication Radio
Limited Partnership, its General Partner
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
BENCHMARK RADIO ACQUISITION
FUND IV LIMITED PARTNERSHIP
By: Benchmark Communication Radio
Limited Partnership, its General Partner
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
BENCHMARK RADIO ACQUISITION
FUND VII LIMITED PARTNERSHIP
By: Benchmark Communication Radio
Limited Partnership, its General Partner
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
BENCHMARK RADIO ACQUISITION
FUND VIII LIMITED PARTNERSHIP
By: Benchmark Communication Radio
Limited Partnership, its General Partner
/s/ XXXXX X. XXXXXXX
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By: Xxxxx X. Xxxxxxx
Its: General Partner
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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
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By: Xxxxxxx Xxxxxxx
Its: General Partner
