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EXHIBIT 10.1.2
January 9, 1997
Benchmark Acquisition, Inc.
c/o 1325 Avenue of the Americas, 25th Floor
New York, NY 10019
Attn: Lawrence D. Stuart, Jr.
Re: 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,
Joseph L. Mathias, Bruce R. Spector, Capstar Broadcasting
Partners,
Inc. and BCR Holding, Inc. dated as of December 9, 1996.
Dear Larry:
Reference is made to the above-referenced Agreement and Plan of Merger
(the "Merger Agreement"). This letter when signed by each of us and the other
parties to the Merger Agreement will memorialize our agreement with respect to
the matters set forth herein. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Agreement.
To simplify the transactions contemplated by the Merger Agreement, the
parties have agreed that on the Closing Date prior to the Effective Time of the
Merger and the Other Benchmark Mergers, Bruce R. Spector will assign his
limited partnership interest in Fund IX, Fund X and Fund XI to Benchmark
Holdings, Inc., a wholly owned subsidiary of Benchmark pursuant to an
Assignments of Partnership Interest in the form of Exhibit A hereto. As a
result of these assignments, Benchmark will, prior to and at the Effective Time
of the Merger, directly or indirectly be the record holder of 100% of the
partnership interests in each of Fund IX, Fund X and Fund XI.
The parties agree that the definition of Assignment of New Fund
Partnership Interests contained in the Merger Agreement shall mean the above
referenced Assignments of Partnership Interest (rather than the forms of
Assignments of Partnership Interests attached as Exhibit 4 to the Merger
Agreement).
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Please countersign this letter below to indicate your agreement with
respect to the matters set forth herein.
BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP
/s/ BRUCE R, SPECTOR
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By: Bruce R. Spector
Its: General Partner
Agreed to and Accepted,
BENCHMARK ACQUISITION, INC.
/s/ PETER BRODSKY
- ---------------------------------
By:
Its:
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The undersigned parties hereby agree to the terms of this letter
agreement, as of the date first written above.
BENCHMARK RADIO ACQUISITION FUND I
LIMITED PARTNERSHIP
/s/ BRUCE R. SPECTOR
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By: Bruce R. Spector
Its: General Partner
BENCHMARK RADIO ACQUISITION FUND IV
LIMITED PARTNERSHIP
/s/ BRUCE R. SPECTOR
---------------------------------------
By: Bruce R. Spector
Its: General Partner
BENCHMARK RADIO ACQUISITION FUND VII
LIMITED PARTNERSHIP
/s/ BRUCE R. SPECTOR
---------------------------------------
By: Bruce R. Spector
Its: General Partner
BENCHMARK RADIO ACQUISITION FUND VIII
LIMITED PARTNERSHIP
/s/ BRUCE R. SPECTOR
---------------------------------------
By: Bruce R. Spector
Its: General Partner
/s/ BRUCE R. SPECTOR
---------------------------------------
Bruce R. Spector
/s/ JOSEPH L. MATHIAS
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Joseph L. Mathias IV
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HOME RUN RADIO LIMITED PARTNERSHIP
By: HR Radio Corporation
Its: General Partner
/s/ BRUCE R. SPECTOR
---------------------------------------
By: Bruce R. Spector
Its: President
GRAND SLAM RADIO LIMITED PARTNERSHIP
/s/ MICHAEL MATHIAS
---------------------------------------
By: Michael Mathias
Its: General Partner
BCR HOLDING, INC.
/s/ PETER S. BRODSKY
---------------------------------------
By: Peter S. Brodsky
Its:
CAPSTAR BROADCASTING PARTNERS, INC.
/s/ PETER S. BRODSKY
---------------------------------------
By: Peter S. Brodsky
Its:
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EXHIBIT A
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ASSIGNMENT OF PARTNERSHIP INTEREST
THIS ASSIGNMENT is made as of _______________, 1997 by BRUCE R.
SPECTOR, (the "Assignor"), in favor of BENCHMARK HOLDINGS CO., INC., a Delaware
corporation (the "Assignee").
RECITALS
WHEREAS, Benchmark Communications Radio Limited Partnership, certain
affiliates thereof, Benchmark Acquisition, Inc., certain affiliates thereof and
Assignor have entered into that certain Agreement and Plan of Merger dated
December 9, 1996 (the "Merger Agreement"); and
WHEREAS, to induce Benchmark Acquisition, Inc. to consummate the
Merger Agreement, Assignor has agreed to assign its Class A Limited Partnership
Interest (the "Assigned Interest") in the Benchmark Radio Acquisition Fund IX
Limited Partnership (the "Partnership") to Benchmark Holdings Co., Inc.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Assignment. Assignor assigns and grants to Assignee all of its
right, title and interest in and to the Assigned Interest.
2. Representations, Warranties and Covenants of Assignee. Assignee
represents, warrants and covenants as follows:
(a) Good Standing. Assignee is a corporation, duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
formation and has the corporate power to own its property and to carry on its
business as now being conducted and is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the properties
owned or leased by it therein or in which the transaction of its business makes
such qualification necessary.
(b) Corporate Authority. Assignee has full power and authority to
enter into and to perform its obligations under this Assignment, all of which
have been duly authorized by all proper and necessary corporate action. No
consent or approval of shareholders of, or lenders to, Assignee and no consent,
approval, filing or registration with or notice to any governmental authority
on the part of the Assignee is required as a condition to the validity of this
Assignment or the performance by the Assignee of their obligations under this
Agreement.
(c) Binding Agreement. This Assignment constitutes the valid and
legally binding agreement of Assignee and is enforceable against Assignee in
accordance with its terms.
(d) No Conflicts. There is no statute, regulation, rule, order or
judgment, no provision of Assignee's articles of incorporation, by-laws or
other governing documents, and no provision of any mortgage, indenture,
contract or other agreement binding on the Assignee or
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affecting their properties, which would prohibit, or cause a default under or
in any way prevent the execution, delivery, or performance of the terms of this
Assignment.
(e) Assignee will not encumber the Assigned Interest or execute any
financing statement or security agreement in respect of the Assigned Interest.
(f) Assignee will not sell, assign, contract for sale or otherwise
dispose of any of the Assigned Interest other than to re-assign the Assigned
Interest pursuant hereto, unless the other party to such disposition agrees in
writing to be bond by the terms of this Agreement for the benefit of Assignor.
3. Representations, Warranties and Covenants of Assignor. Assignor
represents and warrants to Assignee as follows:
(a) Partnership Authority. Assignor has full power and authority to
enter into and to perform its obligations under this Assignment. No consent or
approval of lenders to, Assignor and no consent, approval, filing or
registration with or notice to any governmental authority on the part of
Assignor is required as a condition to the validity of this Assignment or the
performance by Assignor of their obligations under this Assignment.
(b) Binding Agreement. This Assignment constitutes the valid and
legally binding agreement of Assignor and is enforceable against Assignor in
accordance with its terms.
(c) No Conflicts. There is no statute, regulation, rule, order or
judgment, no provision of Assignor's partnership agreements or certificates,
and no provision of any mortgage, indenture, contract or other agreement
binding on the Assignor or affecting their properties, which would prohibit, or
cause a default under or in any way prevent the execution, delivery, or
carrying out of the terms of this Assignment.
4. Assignment. No party may assign its rights or obligations
hereunder without the prior written consent of the other party; provided,
however, (a) upon notice to Assignor and without releasing Assignee from any of
its obligations or liabilities hereunder, Assignee may assign or delegate any
or all of its rights or obligations under this Agreement to any affiliate
thereof, and (b) nothing in this Agreement shall limit Assignee's ability to
make a collateral assignment of its rights under this Agreement to any
institutional lender that provides funds to Assignee without the consent of
Assignor. Assignor shall execute an acknowledgment of such assignment(s) and
collateral assignments in such forms as Assignee or its institutional lenders
may from time to time reasonably request; provided, however, that unless
written notice is given to Assignor that any such collateral assignment has
been foreclosed upon, Assignor shall be entitled to deal exclusively with
Assignee as to any matters arising under this Agreement or any of the other
Agreements delivered pursuant thereto. Subject to the foregoing, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by the
parties hereto and their respective successors and assignees.
5. Consent. Assignor and Benchmark hereby consent to this Assignment
for purposes of Section 6.01(a)(1) of the Partnership Agreement.
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6. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and referenced
herein, supersede and terminate any prior agreements between the parties
(written or oral). This Agreement may not be altered or amended except by an
instrument in writing signed by the parties hereto.
7. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures on each such counterpart
were on the same instrument.
8. Construction. The Section headings of this Agreement are for
convenience only and in no way modify, interpret or construe the meaning of
specific provisions of the Agreement.
9. Choice of Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Maryland, without regard to the
choice of law rules utilized in that jurisdiction.
10. Severability. If any one or more of the provisions contained in
this Agreement should be found invalid, illegal or unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. Any
illegal or unenforceable term shall be deemed to be void and of no force and
effect only to the minimum extent necessary to bring such term within the
provisions of applicable law and such term, as so modified, and the balance of
this Agreement shall then be fully enforceable.
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IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
officers or partners of each of the parties hereto as of the day and year above
first written.
BENCHMARK COMMUNICATIONS RADIO
LIMITED PARTNERSHIP (for purposes of Section 5
only)
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By: Bruce R. Spector
Its: General Partner
BENCHMARK HOLDING CO., INC.
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By:
Its:
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Bruce R. Spector
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