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EXHIBIT 4.6
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated
as of ________ __, 1999, by and between SPANISH BROADCASTING SYSTEM, INC., a
Delaware corporation (the "Company"), the Guarantors and IBJ WHITEHALL BANK &
TRUST COMPANY, a banking organization organized under the laws of New York, as
trustee (the "Trustee").
WITNESSETH:
WHEREAS, in accordance with Section 8.02 of the Indenture,
relating to the 12 1/2% Senior Notes due 2002, (the "Notes") of the Company,
dated as of June 29, 1994, by and between the Company, the Guarantors and the
Trustee (the "Indenture"), the Trustee, the Guarantors, the Company and the
Holders of more than a majority in principal amount of the Notes outstanding as
of the date hereof desire to amend certain terms of the Indenture as described
below (the "Proposed Amendments"); and
WHEREAS, the Company intends to consummate a series of
reorganization transactions (collectively, the "Reorganization") designed to
simplify its corporate and capital structure, which include among other
transactions: (i) the redesignation of the Company's previously outstanding
shares of Class A Common Stock into shares of Class B Common Stock and the
fifty-to-one stock split of the Company's Class B Common Stock; (ii) an initial
public offering of the Company's Class A Common Stock, par value $.0001 per
share (the "IPO"), as described in the registration statement on Form S-1
originally filed on August 18, 1999 (Registration No. 333-85499), as amended,
with the Securities and Exchange Commission (the "Commission"); (iii) a public
offering by the Company of $235.0 million aggregate principal amount of its
senior subordinated notes due 2009 (the "Debt Offering"), as described in the
registration statement on Form S-1 originally filed on August 18, 1999
(Registration No. 333-85519), as amended, with the Commission; (iv) the use by
the Company of the net proceeds of the IPO to redeem its 14 1/4% Senior
Exchangeable Preferred Stock; and (v) a concurrent tender offer for the
Company's 11% Senior Notes due 2004, Series B (the "11% Notes").
WHEREAS, the Company has solicited (the "Solicitation")
consents from the Holders to the amendments contained in this Supplemental
Indenture and the Company has received consents from Holders of more than a
majority in principal amount of the Notes outstanding as of the date hereof; and
WHEREAS, the Board of Directors of the Company has authorized
this Supplemental Indenture; and
WHEREAS, concurrent with the Solicitation, the Company has
offered to purchase for cash any and all of the outstanding Notes from the
Holders thereof upon the terms and conditions set forth in the Offer to Purchase
and Consent Solicitation Statement dated
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September 30, 1999, as amended from time to time (the "Offer"); and
WHEREAS, it is intended that this Supplemental Indenture
become effective upon acceptance for purchase by the Company pursuant to the
Offer of the Notes tendered into the Offer; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplement to the Indenture according to its terms and the
terms of the Indenture have been done:
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Certain Terms Defined in the Indenture. All
capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Indenture.
SECTION 2. Deletion of Certain Definitions. The following
definitions in Section 1.01 of the Indenture are hereby deleted in their
entirety:
Acquisition Indebtedness
Asset Sale
Asset Sale Proceeds
Attributable Indebtedness
Available Asset Sale Proceeds
Change of Control Offer
Change of Control Payment Date
Change of Control Purchase Price
Consolidated Interest Expense
Consolidated Net Income
Corporate Trust Office
EBITDA
Excess Proceeds Offer
Investments
Lien
Net Income
Offer Period
Offering Memorandum
Permitted Investments
Permitted Liens
Property
Purchase Date
Reinvestment Date
Responsible Officer
Restricted Payment
Sale and Leaseback Transaction
Temporary Cash Investments
Units
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SECTION 3. Waiver of Application of Covenants. Subject to
Section 8(b) hereof, the application of the covenants contained in the Indenture
is hereby waived to the extent required to effect the Reorganization that is
consummated substantially concurrently with the consummation of the Offer (the
"Waiver").
SECTION 4. Deletion of Certain Covenants. The text of Sections
4.02 (SEC Reports), 4.03 (Waiver of Stay, Extension or Usury Laws), 4.04
(Compliance Certificate), 4.05 (Taxes), 4.06 (Limitation on Additional
Indebtedness), 4.07 (Limitation on Preferred Stock of Restricted Subsidiaries),
4.08 (Limitation on Capital Stock of Subsidiaries), 4.09 (Limitation on
Restricted Payments), 4.10 (Limitations on Certain Asset Sales), 4.11
(Limitations on Transactions with Affiliates), 4.12 (Limitation on Liens), 4.13
(Limitations on Investments), 4.14 (Limitation on Creation of Subsidiaries),
4.15 (Limitation on Sale and Lease-Back Transactions), 4.16 (Payments for
Consent), 4.17 (Corporate Existence), 4.18 (Change of Control) and 4.19
(Maintenance of Office or Agency) of the Indenture is hereby deleted in its
entirety and is hereby replaced in each such Section, with "[Intentionally
Deleted by Amendment]."
SECTION 5. Deletion of Certain Restrictions with Respect to
Consolidations and Mergers. The text of Section 5.01(a)(iii) (Limitations on
Consolidation, Merger, and Sale of Assets) of the Indenture is hereby deleted in
its entirety.
SECTION 6. Deletion of Certain Events of Default. The text of
paragraph (3) of Section 6.01 of the Indenture is hereby deleted in its entirety
and is hereby replaced with "[Intentionally Deleted by Amendment]." Any
reference to the text "or any Restricted Subsidiary" in paragraphs 6.01(4), (5),
(6) and (8) is hereby deleted in its entirety.
SECTION 7. Deletion of Certain Cross-References. Any reference
to Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 5.01(a)(iii) and 6.01(3) in the
Indenture is hereby deleted.
SECTION 8. Effect of Supplemental Indenture. (a) Upon the
execution and delivery of this Supplemental Indenture by the Company, the
Guarantors and the Trustee, the Indenture shall be amended and supplemented in
accordance herewith, and this Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby, as hereby amended and supplemented; provided, however, the Proposed
Amendments, except as described in (b) with respect to the Waiver, shall not
become operative until the Company has notified the Trustee that it has accepted
for payment at least a majority of the outstanding principal amount of the
Securities pursuant to the offer to purchase for cash any and all of the Notes,
(and at such time the Proposed Amendments shall automatically become operative
without the requirement of any further action by or notice to the Company, the
Guarantor Subsidiaries, the Trustee or any Holder of Securities).
(b) The Waiver shall become operative immediately upon
execution and delivery of this Supplemental Indenture by the Company, the
Guarantors and the Trustee.
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However, if the Offer is terminated or withdrawn or the tendered Notes are not
accepted for payment pursuant to the Offer, the Waiver will cease to be
operative.
SECTION 9. Governing Law. This Supplemental Indenture shall be
governed by the laws of the State of New York.
SECTION 10. Counterparts. This Supplemental Indenture may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
SPANISH BROADCASTING SYSTEM, INC.
a Delaware corporation
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM, INC.
a New Jersey corporation
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
CALIFORNIA, INC.
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
FLORIDA, INC.
By: ___________________________
Name:
Title:
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SPANISH BROADCASTING SYSTEM
NETWORK, INC.
By: ___________________________
Name:
Title:
SBS PROMOTIONS, INC.
By: ___________________________
Name:
Title:
ALARCON HOLDINGS, INC.
By: ___________________________
Name:
Title:
SBS OF GREATER NEW YORK, INC.
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
ILLINOIS, INC.
By: ___________________________
Name:
Title:
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SPANISH BROADCASTING SYSTEM OF
GREATER MIAMI, INC.
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
SAN ANTONIO, INC.
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
PUERTO RICO, INC. a Delaware corporation
By: ___________________________
Name:
Title:
SPANISH BROADCASTING SYSTEM OF
PUERTO RICO, INC. a Puerto Rico corporation
By: ___________________________
Name:
Title:
JUJU MEDIA, INC.
By: ___________________________
Name:
Title:
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IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: ___________________________
Name:
Title: