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EXHIBIT 2.3
AMENDMENT
THIS AMENDMENT (this "Amendment") is executed June 5, 2000 and effective as
of May 12, 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
(the "Exchange Agreement") and an Asset Purchase Agreement (the "Purchase
Agreement"), both dated March 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
amended to:
(i) add as Exchange Party Stations under the Exchange Agreement the
radio stations listed on Exhibit A attached hereto (the provisions of which are
incorporated into this Amendment);
(ii) reduce the Purchase Price under the Purchase Agreement and the
Cash Amount under the Exchange Agreement to an aggregate amount as set forth on
Exhibit B 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; and
(iii) modify Section 17.12 of the Exchange Agreement to provide that
(A) Exchange Party shall deliver Schedules for all Exchange Party Stations
within five business days of the date of this Amendment and Clear Channel may
terminate the Exchange Agreement if Exchange Party Station Schedules
satisfactory to Clear Channel are not delivered within such time, and (B) such
Schedules may not include any contracts with affiliates or identify any Exchange
Party Excluded Assets or Liens, it being agreed that the Exchange Party Station
Assets shall include all assets used or held for use in the operation of the
Exchange Party Stations, free and clear of Liens (including without limitation
all towers and tower sites, but not including employees, computer equipment and
office space dedicated exclusively to Exchange Party's Salisbury, Maryland,
regional accounting center).
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2. Miscellaneous. Except as expressly set forth herein, the Exchange
Agreement and the Purchase Agreement have not been amended or modified and
remain in full force and effect. Any termination of either the Exchange
Agreement or the Purchase Agreement shall terminate 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 AMENDMENT
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first set forth above.
CLEAR CHANNEL: CAPSTAR RADIO OPERATING COMPANY
By:
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Name:
Title:
CAPSTAR TX LIMITED PARTNERSHIP
By:
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Name:
Title:
EXCHANGE PARTY: CUMULUS BROADCASTING, INC.
By:
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Name:
Title:
CUMULUS LICENSING CORP.
By:
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Name:
Title:
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Exhibit A
The following radio stations are hereby included as Exchange Party Stations
for all purposes under the Exchange Agreement (including without limitation all
representations, warranties and covenants with respect to Exchange Party
Stations):
McAllen, Texas: KTEX(FM), Brownsville, Texas
KBFM(FM), Edinburg, Texas
Ann Arbor, Michigan: WIQB-FM, Ann Arbor, Michigan
WQKL(FM), Ann Arbor, Michigan
WTKA(AM), Ann Arbor, Michigan
WYBN(AM), Saline, Michigan
Salisbury, Maryland: WLVW-FM, Salisbury, Maryland
WQHQ(FM), Salisbury, Maryland
WTGM(AM), Salisbury, Maryland
WAWR(AM), Salisbury, Maryland
WSBY-FM, Salisbury, Maryland
WJDY(AM), Salisbury, Maryland
WWFG(FM), Ocean City, Maryland
WLBW(FM), Fenwick Island, Delaware
WOSC(FM), Bethany Beach, Delaware
Eau Claire, Wisconsin: WATQ(FM), Chetek, Wisconsin
WBIZ(AM), Eau Claire, Wisconsin
WBIZ-FM, Eau Claire, Wisconsin
WMEQ(AM), Menomonie, Wisconsin
WMEQ-FM, Menomonie, Wisconsin
WQRB(FM), Bloomer, Wisconsin
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Exhibit B
To induce Clear Channel to accept stations in lieu of cash, Exchange Party
represents and warrants to Clear Channel that Exchange Party has delivered to
Clear Channel the Exchange Party Stations' statements of income for calendar
year 2000 (through April) and sales projections for the subsequent calendar
quarter (prepared in accordance with GAAP and fairly presenting the Exchange
Party Stations results of operations), and that based upon such financials the
Exchange Party Stations' broadcast cash flow for calendar year 2000 will be not
less than $10,536,000 ("Stated BCF").
Based upon such representation, the Purchase Price and Cash Amount shall be
reduced to an aggregate amount equal to $41,600,000 (the "Aggregate Amount");
provided, however, that, if at Closing, based upon the Exchange Party Stations'
calendar year 2000 broadcast cash flow for the period prior to Closing and sales
projections for the period thereafter (prepared in accordance with GAAP and
fairly presenting the Exchange Party Stations results of operations), the
Exchange Party Stations' then projected broadcast cash flow for calendar year
2000 ("Revised BCF") is less than Stated BCF, then the Aggregate Amount shall be
increased by an amount equal to 15.9 multiplied by the difference between Stated
BCF and Revised BCF.
Prior to Closing, Exchange Party shall deliver to Clear Channel monthly
operating statements and pacing reports and all other financial information
regarding the Exchange Party Stations as Clear Channel may request, and Clear
Channel may audit Exchange Party's books and records as necessary to determine
the Exchange Party Stations' broadcast cash flow.
As used herein, "broadcast cash flow" means net cash income from the sale of
advertising time (before interest, income tax, depreciation and amortization).