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EXHIBIT 4.4
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INDENTURE
Dated as of June 17, 1997
Between
CAPSTAR RADIO BROADCASTING PARTNERS, INC., as Issuer,
and
U.S. TRUST COMPANY OF TEXAS, N.A., as Trustee
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$200,000,000
9 1/4% Senior Subordinated Notes due 2007, Series A
9 1/4% Senior Subordinated Notes due 2007, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- ---------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10;
11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07; 4.09;
11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Incorporation by Reference of TIA . . . . . . . . . . . . . . . . . . . . . . 22
Section 1.03 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE TWO
THE SECURITIES
Section 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.04 Paying Agent To Hold Assets in Trust . . . . . . . . . . . . . . . . . . . . . 25
Section 2.05 Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.07 Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.08 Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.09 Treasury Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.13 CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.14 Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.15 Book-Entry Provisions for Global Securities . . . . . . . . . . . . . . . . . 30
Section 2.16 Registration of Transfers and Exchanges . . . . . . . . . . . . . . . . . . . 31
ARTICLE THREE
REDEMPTION
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.02 Selection of Securities To Be Redeemed . . . . . . . . . . . . . . . . . . . . 37
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.06 Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . 39
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ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.03 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.04 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 4.05 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . 45
Section 4.06 Maintenance of Properties and Insurance . . . . . . . . . . . . . . . . . . . 45
Section 4.07 Compliance Certificate; Notice of Default . . . . . . . . . . . . . . . . . . 46
Section 4.08 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.09 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 4.10 Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . . . . . 47
Section 4.11 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . 48
Section 4.12 Limitation on Incurrence of Additional Indebtedness and Issuance of
Preferred Stock of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.13 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries . 49
Section 4.14 Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 4.15 Limitation on Asset Sales . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 4.16 Limitation on Asset Swaps . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.17 Limitation on Other Senior Subordinated Indebtedness . . . . . . . . . . . . . 55
Section 4.18 Escrow of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.19 Special Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 4.20 Special Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Merger, Consolidation and Sale of Assets . . . . . . . . . . . . . . . . . . . 59
Section 5.02 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . 61
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ARTICLE SIX
DEFAULT AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.07 Rights of Holders To Receive Payment . . . . . . . . . . . . . . . . . . . . 65
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 7.05 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.06 Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.09 Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . 74
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 7.11 Preferential Collection of Claims Against the Company . . . . . . . . . . . . 75
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Termination of the Company's Obligations . . . . . . . . . . . . . . . . . . 75
Section 8.02 Acknowledgment of Discharge by Trustee . . . . . . . . . . . . . . . . . . . 78
Section 8.03 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.04 Repayment to the Company . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 8.05 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 9.02 With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.03 Compliance with TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . 81
Section 9.05 Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . 82
Section 9.06 Trustee To Sign Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE TEN
SUBORDINATION OF SECURITIES
Section 10.01 Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . 83
Section 10.02 Payment Over of Proceeds upon Dissolution, etc. . . . . . . . . . . . . . 83
Section 10.03 Suspension of Payment When Senior Indebtedness in Default . . . . . . . . 85
Section 10.04 Trustee's Relation to Senior Indebtedness . . . . . . . . . . . . . . . . 86
Section 10.05 Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . 87
Section 10.06 Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . 88
Section 10.07 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . 88
Section 10.08 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . 89
Section 10.09 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 10.10 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . 91
Section 10.11 Rights of Trustee as a Holder of Senior Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 10.12 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . 92
Section 10.13 No Suspension of Remedies . . . . . . . . . . . . . . . . . . . . . . . . 92
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 TIA Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 11.03 Communications by Holders with Other Holders . . . . . . . . . . . . . . . 94
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Section 11.04 Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . 94
Section 11.05 Statements Required in Certificate or Opinion . . . . . . . . . . . . . . 94
Section 11.06 Rules by Trustee, Paying Agent, Registrar . . . . . . . . . . . . . . . . 95
Section 11.07 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.09 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . 95
Section 11.10 No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.12 Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accredited Investors
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of this Indenture.
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INDENTURE, dated as of June 17, 1997, between Capstar Radio
Broadcasting Partners, Inc., a Delaware corporation (the "Company"), and U.S.
Trust Company of Texas, N.A., a national banking association, as trustee (the
"Trustee").
The Company has duly authorized the creation of an issue of 9 1/4%
Senior Subordinated Notes due 2007, Series A, and 9 1/4% Senior Subordinated
Notes due 2007, Series B, to be issued in exchange for the 9 1/4% Senior
Subordinated Notes due 2007, Series A, pursuant to a registration rights
agreement and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid and binding obligations of the Company and to
make this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 9
1/4% Senior Subordinated Notes due 2007 (the "Securities"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceleration Notice" has the meaning provided in Section 6.02.
"Acquired Indebtedness" means Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in connection with, or in anticipation
or contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition, merger or consolidation.
"Acquired Preferred Stock" means Preferred Stock of any Person at
the time such Person becomes a Subsidiary of the Company or at the time it
merges or consolidates with the
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Company or any of its Subsidiaries and not issued by such Person in connection
with, or in anticipation or contemplation of, such acquisition, merger or
consolidation.
"Affiliate" means a Person who, directly or indirectly, through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Company. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise.
"Affiliate Transaction" has the meaning provided in Section 4.11.
"Agent" means any Registrar, Paying Agent or Co-Registrar.
"Asset Acquisition" means (i) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or shall be consolidated or merged
with the Company or any Subsidiary of the Company or (ii) the acquisition by
the Company or any Subsidiary of the Company of assets of any Person comprising
a division or line of business of such Person.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business), assignment or other transfer for value by the
Company or any of its Subsidiaries (excluding any Sale and Leaseback
Transaction or any pledge of assets or stock by the Company or any of its
Subsidiaries) to any Person other than the Company or a Wholly Owned Subsidiary
of the Company of (i) any Capital Stock of any Subsidiary of the Company or
(ii) any other property or assets of the Company or any Subsidiary of the
Company other than in the ordinary course of business; provided, however, that
for purposes of Section 4.15, Asset Sales shall not include (a) a transaction
or series of related transactions in which the Company or its Subsidiaries
receive aggregate consideration of less than $1,000,000, (b) transactions
permitted under Section 4.16, or (c) transactions covered by Section 5.01.
"Asset Swap" means the execution of a definitive agreement, subject
only to Federal Communications Commission (the "FCC") approval, if applicable,
and other customary closing conditions, that the Company in good faith believes
will be
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satisfied, for a substantially concurrent purchase and sale, or exchange, of
Productive Assets between the Company or any of its Subsidiaries and another
Person or group of affiliated Persons; provided that any amendment to or waiver
of any closing condition that individually or in the aggregate is material to
the Asset Swap shall be deemed to be a new Asset Swap.
"Bankruptcy Law" means Title 11, United States Code or any similar
federal, state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board
of Directors (or any other equivalent governing body) of such Person or any
committee of the Board of Directors of such Person duly authorized, with
respect to any particular matter, to exercise the power of the Board of
Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of capital stock of such Person and (ii) with respect to
any Person that is not a corporation, any and all partnership or other equity
interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligation of such Person to pay rent or other amounts under a lease to which
such Person is a party that is required to be classified and accounted for as a
capital lease obligation under GAAP, and for purposes of this definition, the
amount of such obligation at any date shall be the capitalized amount of such
obligation at such date, determined in accordance with GAAP.
"Capstar Broadcasting" means Capstar Broadcasting Corporation, a
Delaware corporation.
"Capstar Partners" means Capstar Broadcasting Partners Inc., a
Delaware corporation and sole stockholder of the Company.
11
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"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Moody's Investors
Service, Inc.; (iii) commercial paper maturing no more than one year from the
date of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Corporation or at least P-1 from Moody's
Investors Service, Inc.; (iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof issued by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia or any U.S. branch of a foreign bank
having at the date of acquisition thereof combined capital and surplus of not
less than $200,000,000; (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
entered into with any bank meeting the qualifications specified in clause (iv)
above; and (vi) investments in money market funds that invest substantially all
their assets in securities of the types described in clauses (i) through (v)
above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for
purposes of Section 13(d) of the Exchange Act (a "Group") (whether or not
otherwise in compliance with the provisions of the Indenture), other than to
Hicks Muse, any of its affiliates (excluding Chancellor), officers and
directors or R. Steven Hicks (the "Permitted Holders"); or (ii) a majority of
the board of directors of the Company shall consist of Persons who are not
Continuing Directors; or (iii) the acquisition by any Person or Group (other
than the Permitted Holders) of the power, directly or indirectly, to vote or
direct the voting of securities having more than 50% of the ordinary voting
power for the election of directors of the Company.
12
-5-
"Change of Control Date" has the meaning provided in Section 4.14.
"Change of Control Offer" has the meaning provided in Section 4.14.
"Change of Control Payment Date" has the meaning provided in
Section 4.14.
"Change of Control Redemption" has the meaning specified in the
form of Security.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangements entered into by the
Company or any of its Subsidiaries designed to protect the Company or any of
its Subsidiaries against fluctuations in the price of commodities actually used
in the ordinary course of business of the Company and its Subsidiaries.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor and also includes for the purposes of any provision contained herein
and required by the TIA any other obligor on the Securities.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sun (without duplication) of (i) Consolidated Net Income and (ii)
to the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Subsidiaries paid or accrued in accordance with
GAAP for such period (other than income taxes attributable to extraordinary or
nonrecurring gains or losses), (B) Consolidated Interest Expense and (C)
Consolidated Non-Cash Charges, all as determined on a consolidated basis for
such Person and its Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, with respect to any Person
for any period, without duplication, the sum of (i) the interest expense of
such Person and its Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount, (b) the net cost under Interest Swap
Obligations (including any amortization of discounts), (c) the
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-6-
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owned with respect to letters of credit,
bankers' acceptance financing or similar facilities, and (d) all accrued
interest and (ii) the interest component of Capitalized Lease Obligations paid
or accrued by such Person and its Subsidiaries during such period as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or loss) of such Person and its Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided
that there shall be excluded therefrom, without duplication, (a) gains and
losses from Asset Sales (without regard to the $1,000,000 limitation set forth
in the definition thereof) or abandonments or reserves relating thereto and the
related tax effects, (b) items classified as extraordinary or nonrecurring
gains and losses, and the related tax effects according to GAAP, (c) the net
income (or loss) of any Person acquired in a pooling of interests transactions
accrued prior to the date it becomes a Subsidiary of such first referred to
Person or is merged or consolidated with it or any of its Subsidiaries, (d) the
net income of any Subsidiary to the extent that the declaration of dividends or
similar distributions by that Subsidiary of that income is restricted by
contract, operation of law or otherwise, (e) the net income of any Person,
other than a Subsidiary, except to the extent of the lesser of (x) dividends or
distributions paid to such first referred to Person or its Subsidiary by such
Person and (y) the net income of such Person (but in no event less than zero),
and the net loss of such Person shall be included only to the extent of the
aggregate Investment of the first referred to Person or a consolidated
Subsidiary of such Person and (f) any non-cash expenses attributable to grants
or exercises of employee stock options.
"Consolidated Non-Cash Charges" means, with respect to any Person
for any period, the aggregate depreciation, amortization and other non-cash
expenses of such Person and its Subsidiaries (excluding any such charges
constituting an extraordinary or nonrecurring item) reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Continuing Director" means, as of the date of determination, any
Person who (i) was a member of the Board of Directors of the Company on the
Issue Date, (ii) was nominated for election or elected to the board of
directors of the
14
-7-
Company with the affirmative vote of a majority of the Continuing Directors who
were members of such board of directors at the time of such nomination or
election or (iii) is a representative of a Permitted Holder.
"Credit Facility" means the credit agreement dated February 20,
1997 among the Company, Capstar Partners, Bankers Trust Company, as agent, and
the lenders parties thereto from time to time, as the same may be amended,
supplemented or otherwise modified from time to time, and any renewal,
extension, refunding, restructuring, replacement or refinancing thereof
(whether with the original agent and lenders or another agent or agents or
other lenders and whether provided under the original Credit Facility or any
other credit agreement).
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
the Company or any of its Subsidiaries against fluctuations in currency values.
"Default" means an event or condition the occurrence of which is,
or with the lapse of time or the giving of notice or both would be, the Event
of Default.
"Depository" means, with respect to the Securities issued in the
form of one or more Global Securities, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Senior Indebtedness" means any Senior Indebtedness (a)
which at the time of determination exceeds $10 million in aggregate principal
amount (or accreted value in the case of Indebtedness issued at a discount)
outstanding or available under a committed facility, (b) which is specifically
designed in the instrument evidencing such Senior Indebtedness as "Designed
Senior Indebtedness" by such Person and (c) as to which the Trustee has been
given written notice of such designation.
"Discharged" has the meaning provided in Section 8.01.
"Discount Notes" means the 12-3/4% Senior Discount Notes due 2009
of Capstar Partners.
15
-8-
"Disqualified Capital Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures
(excluding any maturity as the result of an optional redemption by the issuer
thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable as the sole option of the holder thereof (except,
in each case, upon the occurrence of a Change of Control), in whole or in part,
on or prior to the final maturity date of the Securities.
"Escrow Account" has the meaning provided in Section 4.18.
"Escrow Agent" shall mean Bankers Trust Company.
"Escrow Agreement" means that certain Notes Escrow Agreement dated
as of June 17, 1997 among Bankers Trust Company, as escrow agent, U.S. Trust
Company of Texas, N.A., and the Company.
"Escrow Funds" has the meaning provided in Section 4.18.
"Event of Default" has the meaning provided in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the Commission
thereunder.
"Existing Indenture" means the indenture governing the Existing
Notes dated as of April 21, 1995 by and among the Company, as Issuer, the
Subsidiaries of the Company named therein, as Guarantors, and IBJ Schroder Bank
& Trust Company, as Trustee, as in effect on the Issue Date.
"Existing Notes" means the Company's 13-1/4% Senior Subordinated
Notes due 2003.
"Final Special Offer Notice Date" has the meaning provided in
Section 4.19.
"Financial Monitoring and Oversight Agreements" means,
collectively, (i) the Monitoring and Oversight Agreement between Capstar
Partners and Hicks, Muse & Co. Partners, L.P. ("HM Partners") as in effect on
the Issue Date, and (ii) the
16
-9-
Financial Advisory Agreement between Capstar Partners and HM Partners, as in
effect on the Issue Date.
"Funds" shall have the meaning provided in Section 8.01.
"GAAP" means generally accepted accounting principles as in effect
in the United States of America as of the Issue Date.
"Global Security" means a security evidencing all or a portion of
the Securities issued to the Depository or its nominee in accordance with
Section 2.01 and bearing the legend set forth in Exhibit C.
"GulfStar" means GulfStar Communications, Inc.
"GulfStar Merger" refers to Capstar Broadcasting's acquisition of
GulfStar.
"GulfStar Transaction" means the Hicks Muse GulfStar Equity
Investment, the GulfStar Merger, the contribution by Capstar Broadcasting of
the surviving entity in the GulfStar Merger through Capstar Partners to the
Company and the contribution through Capstar Partners to the Company of $48.0
million in cash by Capstar Broadcasting.
"Hicks Muse" means Hicks, Muse, Tate & Furst Incorporated, a
Delaware corporation.
"Hicks Muse GulfStar Equity Investment" means the purchase by
affiliates of Hicks Muse of certain shares of Capital Stock, par value $.01 per
share, of Capstar Broadcasting for $75.0 million in cash at or prior to
consummation of the GulfStar Merger.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without
duplication, any liability of such Person (i) for borrowed money, (ii)
evidenced by bonds, debentures, notes or other similar instruments, (iii)
constituting Capitalized Lease Obligations, (iv) incurred or assumed as the
deferred purchase price of property, or pursuant to conditional sale
obligations and title retention agreements (but excluding trade accounts
payable arising in the ordinary course of business), (v) for
17
-10-
the reimbursement of any obligor on any letter of credit, banker's acceptance
or similar credit transaction, (vi) for Indebtedness of others guaranteed by
such Person, (vii) for Interest Swap Obligations, Commodity Agreements and
Currency Agreements and (viii) for Indebtedness of any other Person of the type
referred to in clauses (i) through (vii) which is secured by any Lien on any
property or asset of such first referred to Person, the amount of such
Indebtedness being deemed to be the lesser of the value of such property or
asset or the amount of the Indebtedness so secured. The amount of Indebtedness
of any Person at any date shall be the outstanding principal amount of all
unconditional obligations described above, as such amount would be reflected on
a balance sheet prepared in accordance with GAAP, and the maximum liability of
such date of such Person for any contingent obligations described above.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person
under any interest rate protection agreement, interest rate future, interest
rate option, interest rate swap, interest rate cap or other interest rate hedge
or arrangement.
"Investment" means (i) any transfer or delivery of cash, stock or
other property of value in exchange for Indebtedness, stock or other security
or ownership interest in any Person by way of loan, advance, capital
contribution, guarantee or otherwise and (ii) an investment deemed to have been
made by the Company at the time any entity which was a Subsidiary of the
Company ceases to be such a Subsidiary in an amount equal to the value of the
loans and advances made, and any remaining ownership interest in, such entity
immediately following such entity ceasing to be a Subsidiary of the Company.
The amount of any non-cash Investment shall be the fair market value of such
Investment, as determined conclusively in good faith by management of the
Company unless the fair market value of such Investment exceeds $2,000,000, in
which case the fair market value shall be determined conclusively in good faith
by the Board of Directors of the Company at the time such Investment is made.
18
-11-
"Issue Date" means the date of original issuance of the Securities.
"Legal Holiday" has the meaning provided in Section 10.07.
"Leverage Ratio" shall mean the ratio of (i) the aggregate
outstanding amount of Indebtedness of the Company and its Subsidiaries as of
the date of calculation on a consolidated basis in accordance with GAAP
(subject to the terms described in the next paragraph) plus the aggregate
liquidation preference of all outstanding Preferred Stock of the Company's
Subsidiaries (except Preferred Stock issued to the Company or a Wholly Owned
Subsidiary of the Company) on such date to (ii) the Consolidated EBITDA of the
Company for the four full fiscal quarters (the "Four Quarter Period") ending on
or prior to the date of determination.
For purposes of this definition, (i) the amount of Indebtedness
which is issued at a discount shall be deemed to be the accreted value of such
Indebtedness at the end of the Four Quarter Period, whether or not such amount
is the amount then reflected on a balance sheet prepared in accordance with
GAAP, and (ii) the aggregate outstanding principal amount of Indebtedness of
the Company and its Subsidiaries and the aggregate liquidation preference of
all outstanding Preferred Stock of the Company's Subsidiaries for which such
calculation is made shall be determined on a pro forma basis as if the
Indebtedness and Preferred Stock giving rise to the need to perform such
calculation had been incurred and issued and the proceeds therefrom had been
applied, and all other transactions in respect of which such Indebtedness is
being incurred or Preferred Stock is being issued had occurred, on the last day
of the Four Quarter Period. In addition to the foregoing, for purposes of this
definition, "Consolidated EBITDA" shall be calculated on a pro forma basis
after giving effect to (i) the incurrence of the Indebtedness of such Person
and its Subsidiaries and the issuance of the Preferred Stock of such
Subsidiaries (and the application of the proceeds therefrom) giving rise to the
need to make such calculation and any incurrence (and the application of the
proceeds therefrom) or repayment of other Indebtedness, other than the
incurrence of repayment of Indebtedness pursuant to working capital facilities,
at any time subsequent to the beginning of the Four Quarter Period and on or
prior to the date of determination, as if such incurrence or issuance (and the
application of the proceeds thereof), or the repayment, as the case may be,
occurred on the first day of
19
-12-
the Four Quarter Period, (ii) any Asset Sales or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of such Person or one of its Subsidiaries (including
any Person that becomes a Subsidiary as a result of such Asset Acquisition)
incurring, assuming or otherwise becoming liable for Indebtedness or such
Person's Subsidiaries issuing Preferred Stock) at any time on or subsequent to
the first day of the Four Quarter Period and on or prior to the date of
determination, as if such Asset Sale or Asset Acquisition (including the
incurrence, assumption or liability for any such Indebtedness and the issuance
of such Preferred Stock and also including any Consolidated EBITDA associated
with such Asset Acquisition) occurred on the first day of the Four Quarter
Period and (iii) cost savings resulting from employee terminations, facilities
consolidations and closings, standardization of employee benefits and
compensation practices, consolidation of property, casualty and other insurance
coverage and policies, standardization of sales representation commissions and
other contract rates, and reductions in taxes that income taxes (collectively,
"Cost Savings Measures"), which cost savings the Company reasonably believes in
good faith would have been achieved during the Four Quarter Period as a result
of such Asset Acquisitions (regardless of whether such cost savings could then
be reflected in pro forma financial statements under GAAP, Regulation S-X
promulgated by the Commission or any other regulation or policy of the
Commission), provided that both (A) such cost savings and Cost Savings Measures
were identified and such cost savings were quantified in an officer's
certificate delivered to the Trustee at the time of the consummation of the
Asset Acquisition and such officer's certificate states that such officer
believes in good faith that actions will be commenced or initiated within 90
days of such Asset Acquisition to effect such Cost Savings Measures and (B)
with respect to each Asset Acquisition completed prior to the 90th day
preceding such date of determination, actions were commenced or initiated by
the Company within 90 days of such Asset Acquisition to effect the Cost Savings
Measures identified in such officer's certificate (regardless, however, of
whether the corresponding cost savings have been achieved). Furthermore, in
calculating "Consolidated Interest Expense" for purposes of the calculation of
"Consolidated EBITDA," (i) interest on Indebtedness determined on a fluctuating
basis as of the date of determination (including Indebtedness actually incurred
on the date of the transaction giving rise to the need to calculate the
Leverage Ratio) and which will continue to be so determined thereafter shall be
deemed to have accrued at fixed rate per
20
-13-
annum equal to the rate of interest on such Indebtedness as in effect on the
date of determination and (ii) notwithstanding (i) above, interest determined
on a fluctuating basis, to the extent such interest is covered by Interest Swap
Obligations, shall be deemed to accrue at the rate per annum resulting after
giving effect to the operation of such agreements.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Major Asset Sale" means an Asset Sale or series of related Asset
Sales involving assets with a fair market value in excess of $25,000,000.
"Maturity Date" means July 1, 2007.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents (including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents) received by the Company or any of its Subsidiaries from such Asset
Sale net of (i) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions, recording fees, title insurance premiums,
appraisers fees and costs reasonably incurred in preparation of any asset or
property for sale), (ii) taxes paid or reasonably estimated to be payable
(calculated based on the combined state, federal and foreign statutory tax
rates applicable to the Company or the Subsidiary engaged in such Asset Sale)
and (iii) repayment of Indebtedness secured by assets subject to such Asset
Sale; provided that if the instrument or agreement governing such Asset Sale
requires the transferor to maintain a portion of the purchase price in escrow
(whether as a reserve for adjustment of the purchase price or otherwise) or to
indemnify the transferee for specified liabilities in a maximum specified
amount, the portion of the cash or Cash Equivalents that is actually placed in
escrow or segregated and set aside by the transferor for such indemnification
obligation shall not be deemed to be Net Cash Proceeds until the escrow
terminates or the transferor ceases to segregate and set aside such funds, in
whole or in part, and then only to the extent of the proceeds released from
escrow to the transferor or that are no longer segregated and set aside by the
transferor.
21
-14-
"Net Proceeds Offer" has the meaning provided in Section 4.15.
"Non-Payment Event of Default" means any event (other than a
Payment Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Obligations" means all obligations for principal, premium,
interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing, or otherwise relating
to, any Indebtedness.
"Offering Memorandum" means that certain Offering Memorandum for
the Company's 9 1/4% Senior Subordinated Notes.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer, the Controller, or the Secretary of
such Person, or any other officer designated by the Board of Directors serving
in a similar capacity.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of such Person and otherwise complying with
the requirements of Sections 10.04 and 10.05, as they relate to the making of
an Officers' Certificate.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 11.04 and 11.05, as they relate to the giving of an Opinion of
Counsel.
"Paying Agent" has the meaning provided in Section 2.03, except
that, during the continuance of a Default or Event of Default and for the
purposes of Articles Three and Eight and Sections 4.14 and 4.15, the Paying
Agent shall not be the Company or any Affiliate of the Company.
"Payment Default" means any default, whether or not any requirement
for the giving of notice, the lapse of time or both, or any other condition to
such default becoming an event of default has occurred, in the payment of
principal of (or
22
-15-
premium, if any) or interest on or any other amount payable in connection with
Designated Senior Indebtedness.
"Pending Acquisitions" means the twenty acquisitions described in
the Offering Memorandum as Pending Acquisitions.
"Permitted Holders" shall have the meaning set forth in the
definition of "Change of Control."
"Permitted Indebtedness" means, without duplication, (i)
Indebtedness outstanding on the Issue Date; (ii) Indebtedness of the Company or
a Subsidiary incurred pursuant to the Credit Facility in an aggregate principal
amount at any time outstanding not to exceed the sum of $150 million; (iii)
Indebtedness evidenced by or arising under the Notes and the Indenture; (iv)
Interest Swap Obligations; provided that such Interest Swap Obligations are
entered into to protect the Company from fluctuations in interest rates of its
Indebtedness; (v) additional Indebtedness of the Company or any of its
Subsidiaries not to exceed $20,000,000 in principal amount outstanding at any
time (which amount may, but need not, be incurred under the Credit Facility);
(vi) Refinancing Indebtedness; (vii) Indebtedness owed by the Company to any
Wholly Owned Subsidiary of the Company or by any Subsidiary of the Company to
the Company or any Wholly Owned Subsidiary of the Company; (viii) guarantees by
Subsidiaries of any Indebtedness permitted to be incurred pursuant to the
Indenture; (ix) Indebtedness in respect of performance bonds, bankers'
acceptances and surety or appeal bonds provided by the Company or any of its
Subsidiaries to their customers in the ordinary course of their business; (x)
Indebtedness arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations, or from guarantees or letters of
credit, surety bonds or performance bonds securing any obligations of the
Company or any of its Subsidiaries pursuant to such agreements, in each case
incurred in connection with the disposition of any business assets or
Subsidiaries of the Company (other than guarantees of Indebtedness or other
obligations incurred by any Person acquiring all or any portion of such
business assets or Subsidiaries of the Company for the purpose of financing
such acquisition) in a principal amount not to exceed the gross proceeds
actually received by the Company or any of its Subsidiaries in connection with
such disposition; provided, however, that the principal amount of any
Indebtedness incurred pursuant to this clause (x), when taken together with all
Indebtedness incurred pursuant to this clause (x) and then outstanding, shall
not exceed $15,000,000; and
23
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(xi) Indebtedness represented by Capitalized Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the purpose
of financing all or any part of the purchase price or cost of construction or
improvement of property used in a related business or incurred to refinance any
such purchase price or cost of construction or improvement, in each case
incurred no later than 365 days after the date of such acquisition or the date
of completion of such construction or improvement; provided, however, that the
principal amount of any Indebtedness incurred pursuant to this clause (xi)
shall not exceed $6,000,000 at any time outstanding.
"Permitted Investments" means (i) Investments by the Company or any
Subsidiary of the Company to acquire the stock or assets of any Person (or
Acquired Indebtedness or Acquired Preferred Stock acquired in connection with a
transaction in which such Person becomes a Subsidiary of the Company) engaged
in the broadcast business or businesses reasonably related thereto; provided
that if any such Investment or series of related Investments involves an
Investment by the Company in excess of $5,000,000, the Company is able, at the
time of such investment and immediately after giving effect thereto, to incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
in compliance with Section 4.12 hereof, (ii) Investments received by the
Company or its Subsidiaries as consideration for a sale of assets, (iii)
Investments by the Company or any Wholly Owned Subsidiary of the Company in any
Wholly Owned Subsidiary of the Company (whether existing on the Issue Date or
created thereafter) or any Person that after such Investments, and as a result
thereof, becomes a Wholly Owned Subsidiary of the Company and Investments in
the Company by any Wholly Owned Subsidiary of the Company, (iv) cash and Cash
Equivalents, (v) Investments in securities of trade creditors, wholesales or
customers received pursuant to any plan of reorganization or similar
arrangement, (vi) loans or advances to employees of the Company or any
Subsidiary thereof for purposes of purchasing the Capital Stock of the Company,
Capstar Partners, Capstar Broadcasting or any corporation that, directly or
indirectly, owns all of the Common Stock of Capstar Broadcasting and other
loans and advances to employees made in the ordinary course of business
consistent with past practices of the Company or such Subsidiary, and (vii)
additional Investments in an aggregate amount not to exceed $2,000,000 at any
time outstanding.
"Permitted Junior Securities" means equity securities or
subordinated securities of an issuer as reorganized or
24
-17-
readjusted or securities of the Company or any other company, trust,
corporation or partnership provided for by a plan of reorganization or
readjustment that, in the case of any such subordinated securities, are junior
or the payment of which is otherwise subordinate, at least to the extent
provided in this Indenture, to the payment and satisfaction in full in cash of
all Senior Indebtedness of the Company at the time outstanding, and to the
payment of all securities issued in exchange therefor, to the holders of the
Senior Indebtedness at the time outstanding.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such
Person that has preferential rights to any other Capital Stock of such Person
with respect to dividends or redemptions or upon liquidation.
"principal" of any Indebtedness (including the Securities) means
the principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend initially set forth on
the Securities in the form set forth on Exhibit A.
"pro forma" means, unless otherwise provided herein, with respect
to any calculation made or required to be made pursuant to the terms of this
Indenture, a calculation in accordance with Article 11 of Regulation S-X
promulgated under the Securities Act.
"Proceeds Purchase Date" shall have the meaning provided in Section
4.15.
"Productive Assets" means assets of a kind used or usable by the
Company and its Subsidiaries in broadcast businesses or businesses reasonably
related thereto, and specifically includes assets acquired through Asset
Acquisitions.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Capital Stock) of the Company, Capstar
Partners, Capstar Broadcasting or any corporation that, directly or indirectly,
owns all of the Common Stock of Capstar Broadcasting, pursuant to an
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effective registration statement filed with the Commission in accordance with
the Securities Act; provided, however that, in the case of a Public Equity
Offering by Capstar Partners, Capstar Broadcasting or any such other
corporation, Capstar Partners, Capstar Broadcasting or such other corporation
contributes to the capital of the Company net cash proceeds in an amount
sufficient to redeem the Notes called for redemption in accordance with the
terms thereof.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Redemption Date" means, with respect to any Securities, the
Maturity Date of such Security or the earlier date on which such Security is to
be redeemed by the Company pursuant to the terms of the Securities.
"Redemption Price" shall have the meaning provided in Section 3.03.
"Refinancing Indebtedness" means any refinancing by the Company of
Indebtedness of the Company or any of its Subsidiaries incurred in accordance
with Section 4.12 hereof (other than pursuant to clause (iii) or (iv) of the
definition of Permitted Indebtedness) that does not (i) result in an increase
in the aggregate principal amount of Indebtedness (such principal amount to
include, for purposes of this definition, any premiums, penalties or accrued
interest paid with the proceeds of the Refinancing Indebtedness) of such Person
or (ii) create Indebtedness with (A) a Weighted Average Life to Maturity that
is less than the Weighted Average Life to Maturity of the Indebtedness being
refinanced or (B) a final maturity earlier than the final maturity of the
Indebtedness being refinanced.
"Registrar" has the meaning provided in Section 2.03.
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Senior Indebtedness; provided that
if, and for so long as, any Senior Indebtedness lacks such a representative,
then the Representative for such Senior Indebtedness shall at all times
constitute the holders of a majority in outstanding principal amount of such
Senior Indebtedness.
"Restricted Payment" means (i) the declaration or payment of any
dividend or the making of any other distribution
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(other than dividends or distributions payable in Qualified Capital Stock or in
options, rights or warrants to acquire Qualified Capital Stock) on shares of
the Company's Capital Stock, (ii) the purchase, redemption, retirement or other
acquisition for value of any Capital Stock of the Company, or any warrants,
rights or options to acquire shares of Capital Stock of the Company, other than
through the exchange of such Capital Stock or any warrants, rights or options
to acquire shares of any class of such Capital Stock for Qualified Capital
Stock or warrants, rights or options to acquire Qualified Capital Stock, (iii)
the making of any principal payment on, or the purchase, defeasance,
redemption, prepayment, decrease or other acquisition or retirement for value,
prior to any scheduled final maturity, scheduled repayment or scheduled sinking
fund payment, of, any Indebtedness of the Company or its Subsidiaries that is
subordinated or junior in right of payment to the Securities or (iv) the making
of any Investment (other than a Permitted Investment).
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act.
"Securities" means the Company's 9 1/4% Senior Subordinated Notes
due 2007, as amended or supplemented from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Senior Indebtedness" means the principal of and premium, if any,
and interest on, and any and all other fees, expenses reimbursement obligations
and other amounts due pursuant to the terms of all agreements, documents and
instruments providing for, creating, securing or evidencing or otherwise
entered into in connection with (a) all Indebtedness of the Company owed to
lenders under the Credit Facility, (b) all obligations of the Company with
respect to any Interest Swap Obligations, (c) all obligations of the Company to
reimburse any bank or other person in respect of amounts paid under letters of
credit, acceptances or other similar instruments, (d) all other Indebtedness of
the Company which does not provide that it is to rank pari passu with or
subordinate to the Securities and (e) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any of the
Senior Indebtedness described above.
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Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness
will not include (i) Indebtedness of the Company to any of its Subsidiaries,
(ii) Indebtedness represented by the Securities, (iii) any Indebtedness which
by the express terms of the agreement or instrument creating, evidencing or
governing the same is junior or subordinate in right of payment to any item of
Senior Indebtedness, (iv) any trade payable arising from the purchase of goods
or materials or for services obtained in the ordinary course of business, (v)
Indebtedness incurred in violation of this Indenture and (vi) as long as any
Existing Notes are outstanding, Indebtedness of the Company that is not fully
and adequately secured except as may be required by bankruptcy or other laws
affecting the rights of creditors generally.
"Shortfall Amount" has the meaning provided in Section 4.19.
"Significant Subsidiary" means for any Person each Subsidiary of
such Person which (i) for the most recent fiscal year of such Person accounted
for more than 5% of the consolidated net income of such Person or (ii) as at
the end of such fiscal year, was the owner of more than 5% of the consolidated
assets of such Person.
"Special Offer" has the meaning provided in Section 4.19.
"Special Offer Notice Date" has the meaning provided in Section
4.19.
"Special Offer Purchase Date" has the meaning provided in Section
4.19.
"Special Redemption" has the meaning provided in Section 4.20.
"Subsidiary," with respect to any Person, means (i) any corporation
of which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
Except as specifically provided otherwise in the Indenture, all references to
the Company and its consolidated subsidiaries or to financial
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information prepared on a consolidated basis in accordance with GAAP shall be
deemed to include the Company and its Subsidiaries as to which financial
statements are prepared on a consolidate basis in accordance with GAAP and to
financial information prepared on such a consolidated basis. Notwithstanding
anything in this Indenture to the contrary, an Unrestricted Subsidiary shall
not be deemed to be a Subsidiary for purposes of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as amended, as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters or,
in the case of a successor trustee, an officer assigned to the department,
division or group performing the corporate trust work of such successor.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" means a Subsidiary of the Company created
after the Issue Date and so designated by a resolution adopted by the Board of
Directors of the Company, provided that (a) neither the Company nor any of its
other Subsidiaries (other than Unrestricted Subsidiaries) (1) provides any
credit support for any Indebtedness of such Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness) or (2) is
directly or indirectly liable for any Indebtedness of such Subsidiary and (b)
at the time of designation of such Subsidiary, such Subsidiary has no property
or assets (other than de minimus assets resulting from the initial
capitalization of each Subsidiary). The board of directors may designate any
Unrestricted Subsidiary to be a Subsidiary; provided, however, that immediately
after giving effect to such designation (x) the Company could incur $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 hereof and (y) no Default or Event of Default shall have occurred
or be continuing. Any designation pursuant to this definition by the board of
directors of the Company shall be evidenced to the Trustee by the filing with
the Trustee of a certified copy of the resolution of the Company's Board of
Directors giving effect to such designation and an
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Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" has the meaning provided in Section
8.01.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of
such Person of which all the outstanding voting securities (other than
directors' qualifying shares) which normally have the right to vote in the
election of directors are owned by such Person or any Wholly Owned Subsidiary
of such Person.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect on the Issue Date;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular; and
(5) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The exchange
securities and the Trustee's certificate of authentication relating thereto
shall be substantially in the form of Exhibit B hereto. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement thereon. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture,
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expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers, or an Officer and an Assistant Secretary,
shall sign, or one Officer shall sign and one Officer or an Assistant Secretary
(each of whom shall, in each case, have been duly authorized by all requisite
corporate actions) shall attest to, the Securities for the Company by manual or
facsimile signature.
If an Officer or Assistant Secretary whose signature is
on a Security was an Officer or Assistant Secretary at the time of such
execution but no longer holds that office or position at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.
A Security shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on
the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall authenticate Securities for original
issue in the aggregate principal amount of up to $200,000,000 upon receipt of a
written order of the Company in the form of an Officers' Certificate. Such
Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated.
The aggregate principal amount of Securities outstanding at any time may not
exceed $200,000,000 except as provided in Section 2.07. Upon the written order
of the Company in the form of an Officers' Certificate, the Trustee shall
authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent
reasonably acceptable to the Company to authenticate Securities. Unless
otherwise provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
and Affiliates of the Company.
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The Securities shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency (which
shall be located in the Borough of Manhattan in the City of New York, State of
New York), where (a) Securities may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Securities may be
presented or surrendered for payment ("Paying Agent") and (c) notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company, upon notice to the Trustee, may have
one or more co-Registrars and one or more additional paying agents reasonably
acceptable to the Trustee. The term "Paying Agent" includes any additional
paying agent. The Company may change the Paying Agent or Registrar without
notice to any Holder.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee, in advance, of the name and address of any
such Agent. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such.
The Company initially appoints the Trustee as Registrar
and Paying Agent until such time as the Trustee has resigned or a successor has
been appointed.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that each Paying Agent shall hold in trust for
the benefit of the Holders or the Trustee all assets held by the Paying Agent
for the payment of principal of, or interest on, the Securities (whether such
assets have been distributed to it by the Company or any other obligor on the
Securities), and shall notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. The Company at
any time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any payment
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Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent and the completion of any
accounting required to be made hereunder, the Paying Agent shall have no
further liability for such assets.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee
five (5) Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing a list as of the applicable Record
Date and in such form as the Trustee may reasonably require of the names and
addresses of the Holders, which list may be conclusively relied upon by the
Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Section 2.15, when Securities are presented to
the Registrar or a co-Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange as requested if its
requirements for such transaction are met; provided, however, that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's written request.
No service charge shall be made for any registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith. The
Registrar or co-Registrar shall not be required to register the transfer of or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption pursuant to
Section 3.03 of Securities and ending at the close of business on the day of
such mailing and (ii) selected for
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redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Security being redeemed in part.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or
if the Holder of a Security claims that the Security has been lost, destroyed
or wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security if the Trustee's requirements are met. If required by
the Trustee or the Company, such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Security is replaced. The Company may charge such Holder for
its reasonable, out-of-pocket expenses in replacing a Security, including
reasonable fees and expenses of counsel. Every replacement Security shall
constitute an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities
that have been authenticated by the Trustee except those cancelled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other
than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A mutilated Security
ceases to be outstanding upon surrender of such Security and replacement
thereof pursuant to Section 2.07.
If the principal amount of any Security is paid in
accordance with the provisions of Section 4.01, such Security shall cease to be
outstanding and interest thereon shall cease to accrue.
If on a Redemption Date or the Maturity Date the Paying
Agent holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay
all of the principal, premium and
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interest due on the Securities payable on that date and is not prohibited from
paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction, waiver, consent
or notice, Securities owned by the Company or an Affiliate shall be considered
as though they are not outstanding, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any
of its Affiliates repurchases or otherwise acquires Securities, of the
aggregate principal amount of such Securities so repurchased or otherwise
acquired.
SECTION 2.010. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities
upon receipt of a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of temporary
Securities to be authenticated and the date on which the temporary Securities
are to be authenticated. Temporary Securities shall be substantially in the
form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay,
the Company shall prepare and execute, and the Trustee shall authenticate upon
receipt of a written order of the Company pursuant to Section 2.02, definitive
Securities in exchange for temporary Securities.
SECTION 2.011. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee any Securities surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or the
Paying Agent, and no one else, shall cancel and, at the written direction of
the Company, shall dispose and deliver evidence of disposal of
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all Securities surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Company may not issue new Securities to replace
Securities that the Company has paid or delivered to the Trustee for
cancellation. If the Company shall acquire any of the Securities, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.012. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent lawful)
any interest payable on the defaulted interest to the Persons who are Holders
on a subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest
or the next succeeding Business Day if such date is not a Business Day. At
least 15 days before the subsequent special record date, the Company shall mail
to each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.013. CUSIP Numbers.
The Company in issuing the Securities may use one or more
"CUSIP" numbers, and if so, the Trustee shall use the CUSIP numbers in notices
of redemption or exchange as a convenience to Holders; provided that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP numbers printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers
printed on the Securities.
SECTION 2.014. Deposit of Moneys.
Prior to 11:00 a.m. New York City time on each Interest
Payment Date and Maturity Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date or Maturity Date, as the case may
be.
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SECTION 2.015. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be
registered in the name of the Depository or the nominee of such Depository,
(ii) be delivered to the Trustee as custodian for such Depository and (iii)
bear legends as set forth in Exhibit C.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited
to transfers in whole, but not in part, to the Depository, its successors or
their respective nominees. Interests of beneficial owners in the Global
Securities may be transferred or exchanged for physical securities in
accordance with the rules and procedures of the Depository and the provisions
of Section 2.16. In addition, physical securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in Global
Securities if (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for any Global Security and a successor
Depository is not appointed by the Company within 90 days of such notice or
(ii) an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depository to issue physical securities.
(c) In connection with the transfer of Global
Securities as an entirety to beneficial owners pursuant to paragraph (b) of
this Section 2.15, the Global Securities shall be deemed to be surrendered to
the Trustee for cancellation, and the Company shall execute, and the Trustee
shall upon written instructions from the Company authenticate and deliver, to
each beneficial owner identified by the Depository in exchange for its
beneficial interest in the Global Securities, an equal
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aggregate principal amount of physical securities of authorized denominations.
(d) Any physical security constituting a Restricted
Security delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) of this Section 2.15 shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant
proxies and otherwise authorize any Person, including Participants and Persons
that may hold interests through Participants, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of physical securities.
When physical securities are presented to the Registrar or co-Registrar with a
request:
(i) to register the transfer of the physical
securities; or
(ii) to exchange such physical securities for an equal
number of physical securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the
physical securities presented or surrendered for registration of transfer or
exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(II) in the case of physical securities the offer and
sale of which have not been registered under the Securities Act,
such physical securities shall be accompanied, in the sole
discretion of the Company, by the following additional information
and documents, as applicable:
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(A) if such physical security is being delivered to the Registrar or
co-Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to that
effect (substantially in the form of Exhibit D hereto); or
(B) if such physical security is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A, a certification
from such Holder to that effect (substantially in the form of
Exhibit D hereto); or
(C) if such physical security is being transferred to an Institutional
Accredited Investor, delivery of a certification from the Holder to
that effect (substantially in the form of Exhibit D hereto) and a
Transferee Certificate for Institutional Accredited Investors
substantially in the form of Exhibit E hereto; or
(D) if such physical security is being transferred in reliance on Rule
144 under the Securities Act, delivery of a certification from the
Holder to that effect (substantially in the form of Exhibit D
hereto) and an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in compliance with the
Securities Act; or
(E) if such physical security is being transferred in reliance on
another exemption from the registration requirements of the
Securities Act, a certification from the Holder to that effect
(substantially in the form of Exhibit D hereto) and an Opinion of
Counsel reasonably acceptable to the Company to the effect that
such transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a physical security for a Beneficial
Interest in a Global Security. A physical security may not be exchanged for a
beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar
of a physical security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Registrar or co-Registrar, together
with:
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(A) certification, substantially in the form of Exhibit D hereto, that
such physical security is being transferred to a Qualified
Institutional Buyer; and
(B) written instructions directing the Registrar or co-Registrar to
make, or to direct the Depository to make, an endorsement on the
applicable Global Security to reflect an increase in the aggregate
amount of the Securities represented by the Global Security,
then the Registrar or co-Registrar shall cancel such physical security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar
or co- Registrar, the aggregate principal amount of Securities represented by
the applicable Global Security to be increased accordingly. If no Global
Security representing Securities held by Qualified Institutional Buyers is then
outstanding, the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate
such a Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor. Upon receipt by the Registrar or co-Registrar of written
instructions, or such other instruction as is customary for the Depository,
from the Depository or its nominee requesting the registration of transfer of
an interest in a physical security held by a Qualified Institutional Buyer to
another type of Global Security or physical security, as the case may be,
together with the applicable Global Securities or physical securities (or, if
the applicable type of Global Security required to represent the interest as
requested to be transferred is not then outstanding, only the Global Security
representing the interest being transferred), the Registrar or co-Registrar
shall cancel such Global Securities (or physical securities) and the Company
shall issue and the Trustee shall, upon written instructions from the Company
in accordance with Section 2.02, authenticate new Global Securities or physical
securities of the types so cancelled (or the type so cancelled and applicable
type required to represent the interest as requested to be transferred)
reflecting the applicable increase
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and decrease of the principal amount of Securities represented by such types of
Global Securities or physical securities, giving effect to such transfer. If
the applicable type of Global Security or physical security required to
represent the interest as requested to be transferred is not outstanding at the
time of such request, the Company shall issue and the Trustee shall, upon
written instructions from the Company in accordance with Section 2.02,
authenticate a new Global Security or physical security of such type in
principal amount equal to the principal amount of the interest requested to be
transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a
physical security.
(i) Any Person having a beneficial interest in a Global Security
may upon request exchange such beneficial interest for a physical security.
Upon receipt by the Registrar or co-Registrar of written instructions, or such
other form of instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person having a beneficial interest
in a Global Security and upon receipt by the Trustee of a written order or such
other form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest containing
registration instructions and, in the case of any such transfer or exchange of
a beneficial interest in Securities the offer and sale of which have not been
registered under the Securities Act, the following additional information and
documents:
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial
owner, a certification from such Person to that effect
(substantially in the form of Exhibit D hereto); or
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule l44A, a
certification to that effect (substantially in the form of
Exhibit D hereto); or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the form of
Exhibit D hereto) and a
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Certificate for Institutional Accredited Investors
substantially in the form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a
certification to that effect (substantially in the form of
Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer
is in compliance with the Securities Act; or
(E) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of
the Securities Act, a certification to that effect
(substantially in the form of Exhibit D hereto) and an
Opinion of Counsel reasonably satisfactory to the Company to
the effect that such transfer is in compliance with the
Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Registrar or co-Registrar, the aggregate principal amount of the
applicable Global Security to be reduced and, following such reduction,
the Company will execute and, upon receipt of an authentication order in
the form of an Officers' Certificate in accordance with Section 2.02, the
Trustee will authenticate and deliver to the transferee a physical
security.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Registrar or co-Registrar in writing. The
Registrar or co-Registrar shall deliver such physical securities to the
Persons in whose names such physical securities are so registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a
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nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co- Registrar shall
deliver only Securities that bear the Private Placement Legend unless, and the
Trustee is hereby authorized to deliver Securities without the Private
Placement Legend if (i) there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (ii)
such Security has been sold pursuant to an effective registration statement
under the Securities Act.
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
ARTICLE THREE.
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5 of the
Securities, it shall notify the Trustee and the Paying Agent in writing of the
Redemption Date and the principal amount of the Securities to be redeemed and
whether
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it wants the Trustee to give notice of redemption to the Holders (at the
Company's expense). Such notice must be given at least 60 days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
but shall not be given more than 90 days before the Redemption Date, except in
the case of a Special Redemption in respect of which notice of optional
redemption shall be given at least three Business Days prior to the date of
redemption. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed at any time, the
Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which
the Securities being redeemed are listed, or, in the absence of such
requirements or if the Securities are not listed on a national securities
exchange, on a pro rata basis.
The Trustee shall make the selection from the Securities outstanding and
not previously called for redemption and shall promptly notify the Company in
writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 or less may be redeemed only
in whole. The Trustee may select for redemption portions (equal to $1,000 or
any integral multiple thereof) of the principal amount of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption by first class
mail to each Holder at its registered address whose Securities are to be
redeemed, with a copy to the Trustee. At the Company's request, the Trustee
shall give the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
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(2) the redemption price and the amount of accrued interest, if
any, to be paid (the "Redemption Price");
(3) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption
payment, the Accreted Value shall cease to accrete and interest, if any,
on Securities called for redemption shall cease to accrue on and after
the Redemption Date, and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price upon surrender
to the Paying Agent of the Securities redeemed;
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in the aggregate principal amount equal to the unredeemed
portion thereof will be issued; and
(8) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price. Upon surrender to the Trustee or Paying
Agent, such Securities called for redemption shall be paid at the Redemption
Price.
SECTION 3.05. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with
the Paying Agent U.S. Legal Tender sufficient to
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pay the Redemption Price of all Securities to be redeemed on that date. The
Paying Agent shall promptly return to the Company any U.S. Legal Tender so
deposited that is not required for that purpose, except with respect to monies
owed as obligations to the Trustee pursuant to Article Seven.
If the Company complies with the preceding paragraph, then, unless
the Company defaults in the payment of such Redemption Price, accretion or
interest, as the case may be, on the Securities to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Trustee shall authenticate for the Holder a new Security or Securities equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company will punctually pay the principal, premium, if any, and
interest to become due in respect of the Securities according to the terms of
the Securities and this Indenture; provided, however, that, on the Issue Date,
the Company's obligations on the Securities will consist of (1) the obligation
to pay interest on the aggregate principal amount of the Securities and to pay
$8,538,000 aggregate principal amount of the Securities, plus 1% of the
aggregate principal amount of the Securities in the event of a Special
Redemption or a Change of Control Offer, as otherwise set forth herein, (2) the
obligation to make a Special Offer in accordance with this Indenture, and (3)
the obligation to instruct the Escrow Agent to release the Escrow Funds to the
Trustee to pay the holders of the Securities. At the time of the release of
the Escrow Funds to the Company upon the consummation of a Pending Acquisition,
an aggregate principal amount of the Securities equal to the amount of Escrow
Funds so released automatically will convert into an obligation of the Company
to pay principal, premium (if any) and interest with respect thereto. The
Company will have
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no obligation to make payment on the Securities except as described above until
the Escrow Funds are no longer held in the Escrow Account for the benefit of
the holders of the Securities and the Trustee, and the holders of the
Securities and the Trustee may look only to the Escrow Funds for payment of
additional amounts until such time.
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes imposed by the United States
of America from principal, premium or interest payments hereunder.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain the office or agency required under
Section 2.03. The Company shall give prior notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02.
SECTION 4.03. Limitation on Restricted Payments.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, make any Restricted Payment if at the time of such Restricted
Payment and immediately after giving effect thereto:
(i) a Default or an Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment; or
(ii) the Company is not able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 hereof; or
(iii) the aggregate amount of Restricted Payments made subsequent
to the Issue Date (the amount expended for such purposes, if other than
in cash, being the fair market value of such property as determined by
the board of directors of the Company in good faith) exceeds the sum of:
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(A) (x) 100% of the aggregate Consolidated EBITDA of the
Company (or, in the event such Consolidated EBITDA shall be a
deficit, minus 100% of such deficit) accrued subsequent to the
Issue Date to the most recent date for which financial information
is available to the Company, taken as one accounting period, less
(y) 1.4 times Consolidated Interest Expense for the same period,
plus
(B) 100% of the aggregate net proceeds, including the fair
market value of property other than cash as determined by the board
of directors of the Company in good faith, received by the Company
from any Person (other than a Subsidiary of the Company) from the
issuance and sale on or subsequent to the Issue Date of Qualified
Capital Stock of the Company (excluding (i) any net proceeds from
issuances and sales financed directly or indirectly using funds
borrowed from the Company or any Subsidiary of the Company, until
and to the extent such borrowing is repaid, but including the
proceeds from the issuance and sale of any securities convertible
into or exchangeable for Qualified Capital Stock to the extent such
securities are so converted or exchanged and including any
additional proceeds received by the Company upon such conversion or
exchange and (ii) any net proceeds received from issuances and
sales that are used to consummate a transaction described in
clauses (2) and (3) of paragraph (B) below), plus
(C) without duplication of any amount included in clause
(iii)(B) above, 100% of the aggregate net proceeds, including the
fair market value of property other than cash (valued as provided
in clause (iii)(B) above), received by the Company as a capital
contribution on or after the Issue Date, plus
(D) the amount equal to the net reduction in Investments
(other than Permitted Investments) made by the Company or any of
its Subsidiaries in any Person resulting from (i) repurchases or
redemptions of such Investments by such Person, proceeds realized
upon the sale of such Investment to an unaffiliated purchaser and
repayments of loans or advances or other transfers of assets by
such Person to the Company or any Subsidiary of the Company or (ii)
the redesignation of Unrestricted Subsidiaries as
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Subsidiaries (valued in each case as provided in the definition of
"Investment") not to exceed, in the case of any Subsidiary, the
amount of Investments previously made by the Company or any
Subsidiary in such Unrestricted Subsidiary, which amount was
included in the calculation of Restricted Payments; provided,
however, that no amount shall be included under this clause (D) to
the extent it is already included in Consolidated EBITDA, plus
(E) the aggregate net cash proceeds received by a Person in
consideration for the issuance of such Person's Capital Stock
(other than Disqualified Capital Stock) that are held by such
Person at the time such Person is merged with and into the Company
in accordance with Section 5.01 subsequent to the Issue Date;
provided, however, that concurrently with or immediately following
such merger the Company uses an amount equal to such net cash
proceeds to redeem or repurchase the Company's Capital Stock, plus
(F) $5,000,000.
Notwithstanding the foregoing, these provisions will not prohibit:
(1) the payment of any dividend or the making of any distribution
within 60 days after the date of its declaration if such dividend or
distribution would have been permitted on the date of declaration;
(2) the purchase, redemption or other acquisition or retirement
of any Capital Stock of the Company or any warrants, options or other
rights to acquire shares of any class of such Capital Stock either (x)
solely in exchange for shares of Qualified Capital Stock or other rights
to acquire Qualified Capital Stock or (y) through the application of the
net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock or
warrants, options or other rights to acquire Qualified Capital Stock or
(z) in the case of Disqualified Capital Stock, solely in exchange for, or
through the application of net proceeds of a substantially concurrent
sale for cash (other than to a Subsidiary of the Company) of,
Disqualified Capital Stock that has a redemption date no earlier than,
and requires the payment of current dividends or distributions
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in cash no earlier than, in each case, the Disqualified Capital Stock
being purchased, redeemed or otherwise acquired or retired;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities either (x)
solely in exchange for shares of Qualified Capital Stock (or warrants,
options or other rights to acquire Qualified Capital Stock), for shares
of Disqualified Capital Stock that have a redemption date no earlier
than, and require the payment of current dividends or distributions in
cash no earlier than, in each case, the maturity date and interest
payments dates, respectively, of the Indebtedness being acquired, or for
Indebtedness of the Company that is subordinate or junior in right of
payment to the Securities, at least to the extent that the Indebtedness
being acquired is subordinated to the Securities and has a Weighted
Average Life to Maturity no less than that of the Indebtedness being
acquired or (y) through the application of the net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of shares of Qualified Capital Stock (or warrants, options or
other rights to acquire Qualified Capital Stock), shares of Disqualified
Capital Stock that have a redemption date no earlier than, and require
the payment of current dividends or distributions in cash no earlier
than, in each case, the maturity date and interest payments dates,
respectively, of the Indebtedness being refinanced, or Indebtedness of
the Company that is subordinate or junior in right of payment to the
Securities at least to the extent that the Indebtedness being acquired is
subordinated to the Securities and has a Weighted Average Life to
Maturity no less than that of the Indebtedness being refinanced;
(4) payments by the Company to repurchase Capital Stock or other
securities of the Company, Capstar Partners, Capstar Broadcasting or any
corporation that, directly or indirectly, owns all of the Common Stock of
Capstar Broadcasting from employees of the Company or any such other
corporation in an aggregate amount not to exceed $5,000,000;
(5) payments to enable the Company or any such other corporation
to redeem or repurchase stock purchase or similar rights in an aggregate
amount not to exceed $500,000;
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(6) payments, not to exceed $100,000 in the aggregate, to enable
the Company or any such other corporation to make cash payments to
holders of its Capital Stock in lieu of the issuance of fractional shares
of its Capital Stock;
(7) payments by the Company to enable Capstar Partners to make
payments pursuant to the Financial Monitoring and Oversight Agreements;
(8) payments made pursuant to any merger, consolidation or sale
of assets effected in accordance with Section 5.01; provided, however,
that no such payment may be made pursuant to this clause (8) unless,
after giving effect to such transaction (and the incurrence of any
Indebtedness in connection therewith and the use of the proceeds
thereof), the Company would be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12 such that after incurring that $1.00 of additional
Indebtedness, the Leverage Ratio would be less than 6.0 to 1; and
(9) the payments of dividends on the Company's Common Stock after
an initial public offering of Common Stock of the Company, Capstar
Partners, Capstar Broadcasting or any corporation that, directly or
indirectly, owns all of the Common Stock of Capstar Broadcasting in an
annual amount not to exceed 6.0% of the gross proceeds (before deducting
underwriting discounts and commissions and other fees and expenses of the
offering) received by the Company (through a capital contribution or
otherwise) from shares of Common Stock sold for the account of the
Company or any such other corporation (and not for the account of any
stockholder) in such initial public offering;
provided, however, that in the case of clauses (3), (4), (5), (6), (8) and (9),
no Event of Default shall have occurred or be continuing at the time of such
payment or as a result thereof. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date, amounts expended
pursuant to clauses (1), (4), (5), (6), (8) and (9) shall be included in such
calculation.
SECTION 4.04. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things reasonably
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necessary to preserve and keep in full force and effect its corporate or other
existence and the corporate or other existence of each of its Significant
Subsidiaries in accordance with the respective organizational documents of each
such Significant Subsidiary and the material rights (charter and statutory) and
franchises of the Company and each such Significant Subsidiary; provided,
however, that the Company shall not be required to preserve, with respect to
itself, any material right or franchise and, with respect to any of its
Significant Subsidiaries, any such existence, material right or franchise, if
the Board of Directors of the Company or such Significant Subsidiary, as the
case may be, shall determine that the preservation thereof is no longer
reasonably necessary or desirable in the conduct of the business of the Company
or any such Significant Subsidiary.
SECTION 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
material lawful claims for labor, materials, supplies and services that, if
unpaid, might by law become a Lien upon the property of it or any of its
Subsidiaries; provided, however, that there shall not be required to be paid or
discharged any such tax, assessment or charge, the amount, applicability or
validity of which is being contested in good faith by appropriate proceedings
and for which adequate provision has been made or where the failure to effect
such payment or discharge is not adverse in any material respect to the
Holders.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall, and shall cause each of its Subsidiaries
to, maintain its material properties in normal condition (subject to ordinary
wear and tear) and make all reasonably necessary repairs, renewals or
replacements thereto as in the judgment of the Company may be reasonably
necessary to the conduct of the business of the Company and its Subsidiaries;
provided, however, that nothing in this Section 4.06 shall prevent the Company
or any of its Subsidiaries from discontinuing the operation and maintenance of
any of its properties, if such properties are, in the reasonable and good faith
judgment of the Board of Directors of the Company or the Subsidiary, as
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the case may be, no longer reasonably necessary in the conduct of their
respective businesses.
(b) The Company shall provide or cause to be provided, for itself
and each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company, are reasonably adequate and appropriate for the conduct of the
business of the Company and such Subsidiaries.
SECTION 4.07. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year, an officers' certificate (signed by
the principal executive officer, principal financial officer or principal
accounting officer) stating that a review of its activities and the activities
of its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether it has
kept, observed, performed and fulfilled its obligations under this Indenture
and further stating, as to each such officer signing such certificate, that to
the best of his knowledge the Company during such preceding fiscal year has
kept, observed, performed and fulfilled each and every such obligation and no
Default or Event of Default occurred during such year and at the date of such
certificate there is no Default or Event of Default that has occurred and is
continuing or, if such signers do know of such Default or Event of Default, the
certificate shall describe the Default or Event of Default and its status with
particularity. The Officers' Certificate shall also notify the Trustee should
the Company elect to change the manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered to the Trustee
pursuant to Section 4.09 shall be accompanied by a written report of the
Company's independent accountants that in conducting their audit of the
financial statements which are a part of such annual report or such annual
financial statements nothing has come to their attention that would lead them
to believe that the Company has violated any provisions of Article Four, Five
or Six insofar as they relate to accounting matters or, if any such violation
has occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
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(c) So long as any of the Securities are outstanding (i) if any
Default or Event of Default has occurred and is continuing or (ii) if any
Holder seeks to exercise any remedy hereunder with respect to a claimed Default
under this Indenture or the Securities, the Company shall promptly deliver to
the Trustee by registered or certified mail or by telegram, telex or facsimile
transmission followed by hard copy by registered or certified mail an Officers'
Certificate specifying such event, notice or other action.
SECTION 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries
to comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliances as are not in the
aggregate reasonably likely to have a material adverse effect on the financial
condition or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 4.09. Reports.
So long as any of the Securities are outstanding, the Company will
provide to the holders of Securities and file with the Commission copies of the
annual reports and of the information, documents, and other reports that the
Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act regardless of whether the Company is
then obligated to file such reports.
SECTION 4.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law that would prohibit or forgive the Company from paying
all or any portion of the principal of, premium or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the obligations or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company hereby
expressly waives
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all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 4.11. Limitations on Transactions with Affiliates.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with or for the benefit of any of its Affiliates
(other than transactions between the Company and a Wholly Owned Subsidiary of
the Company or among Wholly Owned Subsidiaries of the Company) (an "Affiliate
Transaction"), other than Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction on an arm's-length basis from a Person that is not an Affiliate;
provided, however, that for a transaction or series of related transactions
involving value of $2,000,000 or more, such determination will be made in good
faith by a majority of the members of the board of directors of the Company and
by a majority of the disinterested members of the board of directors of the
Company, if any; provided, further, that for a transaction or series of related
transactions involving value of $10,000,000 or more, the board of directors of
the Company has received an opinion from a nationally recognized investment
banking firm that such Affiliate Transaction is fair, from a financial point of
view, to the Company or such Subsidiary. The foregoing restrictions will not
apply to (1) reasonable and customary directors' fees, indemnification and
similar arrangements and payments thereunder, (2) any employment,
noncompetition or confidentiality agreement with any officer of the Company,
(3) reasonable and customary investment banking, financial advisory, commercial
banking and similar fees and expenses paid to BT Securities Corporation and its
Affiliates, (4) any Restricted Payment permitted to be made pursuant to the
covenant described under Section 4.03, (5) any issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the
funding of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of the Company, (6) loans or advances to
employees in the ordinary course of business of the Company or any of its
Subsidiaries consistent with past practices, (7) payments made in connection
with any acquisitions or dispositions by the Company and its Subsidiaries which
acquisitions
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and dispositions are disclosed in the Offering Memorandum, including fees to
Hicks Muse, and (8) the issuance of Capital Stock of the Company (other than
Disqualified Capital Stock).
SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness and Issuance of Preferred
Stock of Subsidiaries.
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable, contingently or otherwise, with
respect to (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness) and the Company's Subsidiaries will not issue any Preferred Stock
(except Preferred Stock issued to the Company or a Wholly Owned Subsidiary of
the Company); provided, however, that the Company and its Subsidiaries may
incur Indebtedness and the Company's Subsidiaries may issue shares of Preferred
Stock if, in either case, the Company's Leverage Ratio at the time of
incurrence of such Indebtedness or the issuance of such Preferred Stock, as the
case may be, after giving pro forma effect to such incurrence or issuance as of
such date and to the use of proceeds therefrom is less than 7.0 to 1.
SECTION 4.013. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, create or otherwise cause to permit to exist or become effective,
by operation of the charter of such Subsidiary or by reason of any agreement,
instrument, judgement, decree, rule, order, statute or governmental regulation,
any encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its Capital Stock; (b) make loans
or advances or pay any Indebtedness or other obligation owed to the Company or
any of its Subsidiaries; or (c) transfer any of its property or assets to the
Company, except for such encumbrances or restrictions existing under or by
reason of: (1) applicable law, (2) this Indenture, (3) customary non-assignment
provisions of any lease governing a leasehold interest of the Company or any
Subsidiary, (4) any instrument governing Acquired Indebtedness or Acquired
Preferred Stock, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired, (5) agreements existing on
the Issue Date (including the Credit Facility and the Existing Indenture) as
such
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agreements are from time to time in effect; provided, however, that any
amendments or modifications of such agreements that affect the encumbrances or
restrictions of the types subject to this Section 4.13 shall not result in such
encumbrances or restrictions being less favorable to the Company in any
material respect, as determined in good faith by the board of directors of the
Company, than the provisions as in effect before giving effect to the
respective amendment or modification, (6) any restriction with respect to such
a Subsidiary imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of such
Subsidiary pending the closing of such sale or disposition, (7) an agreement
effecting a refinancing, replacement or substitution of Indebtedness issued,
assumed or incurred pursuant to an agreement referred to in clause (2), (4) or
(5) above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such refinancing, replacement or substitution
agreement are not less favorable to the Company in any material respect as
determined in good faith by the board of directors of the Company than the
provisions relating to such encumbrance or restriction contained in agreements
referred to in such clause (2), (4) or (5) above, (8) any agreement or charter
provision evidencing Indebtedness or Preferred Stock permitted under this
Indenture; provided, however, that the provisions relating to such encumbrance
or restriction contained in such agreement or charter provision are not less
favorable to the Company in any material respect as determined in good faith by
the board of directors of the Company than the provisions relating to such
encumbrance or restriction contained in this Indenture, or (9) restrictions on
the transfer of assets subject to any Lien imposed by the holder of such Lien.
SECTION 4.14. Change of Control.
(a) Upon the occurrence of a Change of Control, each holder will
have the right to require that the Company purchase all or a portion of such
holder's Securities pursuant to the offer described in paragraph (b) below (the
"Change of Control Offer"), at a purchase price equal to 101% of the principal
amount thereof, plus, without duplication, all accrued and unpaid interest, if
any, to the Change of Control Payment Date. Prior to the mailing of the notice
referred to below, but in any event within 30 days following the date on which
the Company becomes aware that a Change of Control has occurred, the Company
covenants that if the purchase of the Securities would violate or constitute a
default under any other Indebtedness of
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the Company, then the Company shall, to the extent needed to permit such
purchase of Securities, either (i) repay all such Indebtedness and terminate
all commitments outstanding thereunder or (ii) obtain the requisite consents,
if any, under such Indebtedness required to permit the purchase of the
Securities as provided below. The Company will first comply with the covenant
in the preceding sentence before it will be required to make the Change of
Control Offer or purchase the Securities pursuant to the provisions described
below.
(b) Within 30 days following the date on which the Company
becomes aware that a Change of Control has occurred (the "Change of Control
Date"), the Company shall send, by first-class mail, postage prepaid, a notice
to each holder of Securities, which notice shall govern the terms of the Change
of Control Offer. Such notice shall state, among other things:
(1) that the Change of Control Offer is being made pursuant to
this Section 4.14 and that all Securities validly tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued interest,
if any) and the purchase date (which shall be no earlier than 30 days nor
later than 45 days from the date such notice is mailed, other than as may
be required by law) (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrete or accrue interest, as the case may be, after the
Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant
to a Change of Control Offer will be required to surrender the Security
to the paying agent and registrar for the Security at the address
specified in the notice prior to the close of business on the business
day prior to the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date,
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a telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change
of Control.
(c) On or before the Change of Control Payment Date, the Company
shall (i) accept for payment Securities or portions thereof (in integral
multiples of $1,000) validly tendered pursuant to the Change of Control Offer,
(ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
purchase price of all Securities so tendered and (iii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in
an amount equal to the purchase price out of the funds deposited with the
Paying Agent in accordance with the preceding sentence. The Trustee shall
promptly authenticate and mail to such Holders new Securities equal in
principal amount to any unpurchased portion of the Securities surrendered.
Upon the payment of the purchase price for the Securities accepted for
purchase, the Trustee shall return the Securities purchased to the Company for
cancellation. Any amounts remaining after the purchase of Securities pursuant
to a Change of Control Offer shall be returned within three Business Days by
the Trustee to the Company.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act to the extent applicable in connection with the purchase
of the Securities pursuant to a Change of Control Offer.
(e) Paragraphs (a)-(d) of this Section 4.14 notwithstanding, the
Company shall not be required to make a Change of Control Offer if, instead,
the Company elects to effect a Change of Control Redemption in compliance with
the requirements listed on the Securities in Exhibit A and Exhibit B hereof.
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SECTION 4.15. Limitation on Asset Sales.
(a) Neither the Company nor any of its Subsidiaries will
consummate an Asset Sale unless (i) the Company or the applicable Subsidiary,
as the case may be, receives consideration at the time of such Asset Sale at
least equal to the fair market value of the assets sold or otherwise disposed
of (as determined in good faith by management of the Company or, if such Asset
Sale involves consideration in excess of $5,000,000, by the board of directors
of the Company, as evidenced by a board resolution), (ii) at least 75% of the
consideration received by the Company or such Subsidiary, as the case may be,
from such Asset Sale is in cash or Cash Equivalents (other than in the case
where the Company is exchanging all or substantially all the assets of one or
more broadcast businesses operated by the Company (including by way of the
transfer of capital stock) for all or substantially all the assets (including
by way of the transfer of capital stock) constituting one or more broadcast
businesses operated by another Person, in which event the foregoing requirement
with respect to the receipt of cash or Cash Equivalents shall not apply) and is
received at the time of such disposition and (iii) upon the consummation of an
Asset Sale, the Company applies, or causes such Subsidiary to apply, such Net
Cash Proceeds within 180 days of receipt thereof, either (A) to repay any
Senior Indebtedness of the Company or any Indebtedness of a Subsidiary of the
Company (and, to the extent such Senior Indebtedness relates to principal under
a revolving credit or similar facility, to obtain a corresponding reduction in
the commitments thereunder), (B) to reinvest, or to be contractually committed
to reinvest pursuant to a binding agreement, in Productive Assets and, in the
latter case, to have so reinvested within 360 days of the date of receipt of
such Net Cash Proceeds or (C) to purchase Securities tendered to the Company
for purchase at a price equal to 100% of the principal amount thereof plus
accrued interest thereon, if any, to the date of purchase pursuant to an offer
to purchase made by the Company as set forth below (a "Net Proceeds Offer");
provided, however, that the Company may defer making a Net Proceeds Offer until
the aggregate Net Cash Proceeds from Asset Sales not otherwise applied in
accordance with this Section 4.15 equal or exceed $5,000,000. In addition, to
the extent that any Asset Sale also constitutes an asset sale under the
Existing Indenture, a Net Proceeds Offer is only required to be made out of the
proceeds which remain after the application of the proceeds in accordance with
the terms of the Existing Indenture.
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(b) Subject to the deferral right set forth in the final proviso
of paragraph (a), each notice of a Net Proceeds Offer will be mailed, by first
class mail, to holders of Securities not more than 180 days after the relevant
Asset Sale or, in the event the Company or a Subsidiary has entered into a
binding agreement as provided in subsection (a)(iii)(B) above, within 180 days
following the termination of such agreement but in no event later than 360 days
after the relevant Asset Sale. Such notice will specify, among other things,
the purchase date (which will be no earlier than 30 days nor later than 45 days
from the date such notice is mailed, except as otherwise required by law) and
will otherwise comply with the procedures set forth in this Indenture. Upon
receiving notice of the Net Proceeds Offer, holders of Securities may elect to
tender their Securities in whole or in part in integral multiples of $1,000.
To the extent holders properly tender Securities in an amount exceeding the Net
Proceeds Offer, Securities of tendering holders will be repurchased on a pro
rata basis (based upon the principal amount tendered). To the extent that the
aggregate principal amount of Securities tendered pursuant to any Net Proceeds
Offer is less than the amount of Net Cash Proceeds subject to such Net Proceeds
Offer, the Company may use any remaining portion of such Net Cash Proceeds not
required to fund the repurchase of tendered Securities for any purposes
otherwise permitted by this Indenture. Upon the consummation of any Net
Proceeds Offer, the amount of Net Cash Proceeds subject to any future Net
Proceeds Offer from the Asset Sales giving rise to such Net Cash Proceeds shall
be deemed to be zero.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act to the extent applicable in connection with the repurchase of
Securities pursuant to a Net Proceeds Offer.
SECTION 4.016. Limitation on Asset Swaps.
The Company will not, and will not permit any Subsidiary to, engage
in any Asset Swaps, unless: (i) at the time of entering into such Asset Swap
and immediately after giving effect to such Asset Swap, no Default or Event of
Default shall have occurred or be continuing or would occur as a consequence
thereof, (ii) in the event such Asset Swap involves an aggregate amount in
excess of $2,000,000, the terms of such Asset Swap have been approved by a
majority of the members of the board of directors of the Company and (iii) in
the event such Asset Swap involves an aggregate amount in excess of
$10,000,000, the Company has received a written opinion from an
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independent investment banking firm of nationally recognized standing that such
Asset Swap is fair to the Company or such Subsidiary, as the case may be, from
a financial point of view.
SECTION 4.017. Limitation on Other Senior Subordinated
Indebtedness.
The Company will not, directly or indirectly, incur, contingently
or otherwise, any Indebtedness (other than the Securities) that is both (i)
subordinate in right of payment to any Senior Indebtedness and (ii) senior in
right of payment to the Securities. For purposes of this Section 4.17,
Indebtedness is deemed to be senior in right of payment to the Securities if it
is not explicitly subordinate in right of payment to Senior Indebtedness at
least to the same extent as the Securities are subordinate to Senior
Indebtedness.
SECTION 4.18. Escrow of Proceeds.
(a) On the Issue Date, $191,462,000 of the proceeds of the
offering of the Securities is being deposited into an account (the "Escrow
Account") with the Escrow Agent. The amount deposited in the Escrow Account
shall be invested and released in accordance with the express provisions of the
Escrow Agreement. Notwithstanding anything herein or therein to the contrary,
the Escrow Funds shall not be released if a default or event of default exists
or would result from the release of such Escrow Funds under this Indenture, the
Existing Indenture, the Credit Facility or any other Indebtedness of the
Company or its Subsidiaries with an aggregate principal amount outstanding of
$10,000,000 or more. At or prior to each release of Escrow Funds, the Company
shall deliver to the Trustee an Officers Certificate certifying that all
conditions to the release of such funds have been satisfied.
(b) The Company and the Trustee (on its own behalf and on behalf
of the Holders) hereby acknowledge and agree that, until the Escrow Funds are
released by the Escrow Agent in accordance with the Escrow Agreement, the
Escrow Funds shall be the property and assets of the Holders and not the
Company and that the distribution, and rights to possession, of the Escrow
Funds shall in all respects be governed by and subject to the terms and
conditions of the Escrow Agreement and this Indenture. In order to secure the
full and punctual payment and performance of the Company's obligation to offer
to purchase Securities in the event a Special Offer is required to be made in
accordance with Section 4.19, the Company hereby grants
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to the Trustee, for its benefit and for the benefit of the Holders, a first
priority and continuing security interest in and to all of the right, title and
interest (if and to the extent that, notwithstanding the first sentence of this
paragraph (b), any such right, title or interest is determined by a court of
law or otherwise to exist) of the Company in, to and under all cash and Cash
Equivalents from time to time on deposit in the Escrow Account and credited
thereto, whether now owned or existing or hereafter acquired or arising (such
amounts, collectively, the "Escrow Funds").
(c) On the date on which no Escrow Funds remain in the Escrow
Account in accordance with the terms of the Escrow Agreement, the security
interest granted to the Trustee and the Holders described in paragraph (b)
above shall automatically terminate.
(d) On the Special Offer Purchase Date, the Escrow Agent shall
release the Escrow Funds to the Trustee to be applied in accordance with
Section 4.19 and the security interest in the Escrow Funds granted to the
Trustee and the Holders shall, unless a Special Redemption is required to be
made in accordance with Section 4.20, terminate on and as of such Special Offer
Purchase Date.
(e) On the Special Redemption Date, the Escrow Agent shall
release the Escrow Funds to the Trustee to be applied in accordance with
Section 4.20 and the security interest in the Escrow Account granted to the
Trustee and the Holders shall terminate on and as of the date of redemption.
(f) Any amounts remaining in the Escrow Account on the Special
Offer Purchase Date after application of the Escrow Funds as specified in
Section 4.19 shall, unless a special redemption is required to be made in
accordance with Section 4.19, be paid by the Escrow Agent to the Company.
SECTION 4.019. Special Offer.
(a) If the GulfStar Transaction is not consummated prior to
September 30, 1997 or the Company, at its option, determines in its reasonable
judgment that the GulfStar Transaction cannot be consummated prior to September
30, 1997, or if there are any Escrow Funds remaining in the Escrow Account on
March 31, 1998 (the "Final Special Offer Notice Date"), then, on September 30,
1997, such date of determination or the Final Special Offer Notice Date, as
applicable (as the case may be,
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the "Special Offer Notice Date"), the Company will make an offer to purchase
(the "Special Offer") (i) in the event of a Special Offer on September 30, 1997
or such date of determination, all of the outstanding aggregate principal
amount of the Securities, and (ii) in the event of a Special Offer on the Final
Special Offer Notice Date (A) if the amount of Escrow Funds then remaining in
the Escrow Account is more than $125,000,000, all of the outstanding aggregate
principal amount of Securities, or (B) if the amount of Escrow Funds then
remaining in the Escrow Account is $125,000,000 or less, such aggregate
principal amount of Securities as equals the amount of Escrow Funds then
remaining in the Escrow Account on the Final Special Offer Notice Date (as the
case may be, the "Special Offer Amount") for a purchase price of 100% of the
principal amount of the Securities, plus accrued and unpaid interest to the
date of purchase (the "Special Offer Purchase Date").
(b) On the Special Offer Notice Date, the Company shall mail to
each Holder of Securities at such Holder's registered address a notice stating:
(i) that the GulfStar Transaction has not been consummated prior to September
30, 1997, or cannot be consummated prior to September 30, 1997, or that Escrow
Funds remain in the Escrow Account on the Final Special Offer Notice Date, as
the case may be, and that the Company is offering to purchase the specified
aggregate principal amount of Securities at a purchase price in cash equal to
100% of the aggregate principal amount thereof, plus accrued and unpaid
interest to the purchase date of the Securities to be purchased pursuant to the
Special Offer (the "Special Offer Purchase Date"), which shall be a Business
Day, specified in such notice, that is not earlier than 30 days nor later than
60 days from the date such notice is mailed, (ii) the amount of accrued and
unpaid interest on the Securities as of the Special Offer Purchase Date, (iii)
that any Security not tendered will continue to accrue interest, (iv) that,
unless the purchase price for the Securities is not paid pursuant to the
Special Offer on the Special Offer Purchase Date, any Securities accepted for
payment pursuant to the Special Offer shall cease to accrue interest on and
after the Special Offer Purchase Date, (v) the procedures to be followed by a
Holder of Securities in order to accept a Special Offer or to withdraw such
acceptance, and (vi) such other information as may be required by this
Indenture and applicable laws and regulations.
(c) On the Special Offer Purchase Date, the Company will (i)
accept for payment the aggregate principal amount of Securities offered to be
purchased in the Special Offer or such
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lesser amount as is tendered pursuant to the Special Offer and (ii) deliver or
cause to be delivered to the Trustee all Securities tendered pursuant to the
Special Offer and accepted for payment. If the Escrow Funds are insufficient
to pay the Special Offer Purchase Price on the Special Offer Purchase Date,
then the Company shall deposit with the Trustee on or prior to the Special
Offer Purchase Date an amount in cash equal to the difference (the "Shortfall
Amount"). The Escrow Funds shall be delivered by the Escrow Agent to the
Trustee and, along with any Shortfall Amount, will be applied by the Trustee to
consummate the Special Offer. If less than all Securities tendered pursuant to
the Special Offer are accepted for payment by the Company for any reason
consistent with this Indenture, selection of the Securities to be purchased by
the Company shall be in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed or, if
the Securities are not so listed, on a pro rata basis, by lot or by such method
as the Trustee shall deem fair and appropriate; provided that Securities
accepted for payment in part shall only be purchased in integral multiples of
$1,000. The Paying Agent shall promptly mail to each Holder of Securities or
portions thereof accepted for payment an amount equal to the purchase price for
such Securities including any accrued and unpaid interest thereon, and the
Trustee shall promptly authenticate and mail to such Holder of Securities
accepted for payment in part a new Security equal in principal amount to any
unpurchased portion of the Securities, and any Security not accepted for
payment in whole or in part for any reason consistent with this Indenture shall
be promptly returned to the Holder of such Security. On and after the Special
Offer Purchase Date, interest will cease to accrue on the Securities or
portions thereof accepted for payment, unless the Company defaults in the
payment of the purchase price therefor. The Company will announce the results
of the Special Offer to Holders of the Securities on or as soon as practicable
after the Special Offer Purchase Date.
(d) The Company will comply with the applicable tender offer
rules, including the requirements of Rule 14e-1 under the Exchange Act, and all
other applicable securities laws and regulations in connection with any Special
Offer.
SECTION 4.20. Special Redemption.
(a) Except as set forth in Section 4.20(b), if there are Escrow
Funds remaining in the Escrow Account after the
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consummation of the Special Offer, such remaining Escrow Funds shall be
released to the Company.
(b) If the Company shall determine that the release of the
remaining Escrow Funds following the consummation of the Special Offer would
constitute an incurrence of Indebtedness that would result in a default or an
event of default under this Indenture, the Existing Indenture, the Credit
Facility or any other agreement governing Indebtedness of the Company or its
Subsidiaries, then the Company shall redeem such aggregate principal amount of
Securities that is equal to the remaining Escrow Funds on the date of such
redemption (the "Special Redemption") at a redemption price equal to 101% of
the principal amount of such Securities, plus accrued and unpaid interest to
the date of the Special Redemption (the "Special Redemption Price") and direct
the Escrow Agent to release the Escrow Funds to the Trustee to pay the Special
Redemption Price to the Holders of the Securities. The Company shall deposit
with the Trustee on or prior to the date of the Special Redemption the
difference, if any, between the Special Redemption Price and the amount of
Escrow Funds remaining in the Escrow Account on such date.
Notice of Special Redemption will be mailed not less than three
Business Days prior to the date of the Special Redemption.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company may not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into, or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets to, another Person or adopt a plan of
liquidation, unless:
(1) either (A) the Company is the surviving or continuing Person
or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person that
acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety or in the case of a plan of
liquidation, the Person to which assets of the Company
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have been transferred, shall be a corporation, partnership or trust
organized and existing under the laws of the United States or any State
thereof or the District of Columbia;
(2) such surviving Person shall assume all the obligations of the
Company under the Securities and this Indenture pursuant to a
supplemental indenture in a form reasonably satisfactory to the Trustee;
(3) immediately after giving effect to such transaction and the
use of the proceeds therefrom (on a pro forma basis, including giving
effect to any Indebtedness incurred or anticipated to be incurred in
connection with such transaction), the Company (in the case of clause (A)
of the foregoing clause (1)) or such Person (in the case of clause (B) of
the foregoing clause (1)) shall be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.12;
(4) immediately after giving effect to such transactions no
Default or Event of Default shall have occurred and be continuing; and
(5) the Company has delivered to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and
Opinion of Counsel, each stating that such consolidation, merger or
transfer complies with this Indenture and that all conditions precedent
in this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties and assets of one
or more Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, will be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company. Notwithstanding the foregoing clauses (2) and (3), (a) any
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (b) the Company may merge
with a corporate Affiliate thereof incorporated solely for the purpose of
reincorporating the Company in another jurisdiction in the United States to
realize tax or other benefits.
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SECTION 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of assets in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When a successor corporation
assumes all of the obligations of the Company hereunder and under the
Securities and agrees to be bound hereby and thereby, the predecessor shall be
released from such obligations.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company fails to pay interest (including any Additional
Interest) on the Securities when the same becomes due and payable and the
Default continues for a period of 30 days;
(2) the Company fails to pay the principal amount of any
Securities when such principal becomes due and payable, at maturity, upon
redemption or otherwise; or
(3) the Company defaults in the observance or performance of any
other covenant or agreement contained in the Securities or this
Indenture, which Default continues for a period of 30 days after the
Company receives written notice thereof specifying such Default from the
Trustee or holders of at least 25% in aggregate principal amount of
outstanding Securities;
(4) there shall be a failure to pay at the final stated maturity
(giving effect to any extensions thereof) the principal amount of any
Indebtedness of the Company or any Subsidiary of the Company, or the
acceleration of the final stated maturity of any such Indebtedness, if
the aggregate principal amount of such Indebtedness, together
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with the aggregate principal amount of any other such Indebtedness in
default for failure to pay principal at the final stated maturity (giving
effect to any extensions thereof) or which has been accelerated,
aggregates $10,000,000 or more at any time, in each case after a 10-day
period during which such default shall not have been cured or such
acceleration rescinded;
(5) one or more judgments in an aggregate amount in excess of
$10,000,000 (which are not covered by insurance as to which the insurer
has not disclaimed coverage) shall have been rendered against the Company
or any of its Significant Subsidiaries and such judgment or judgments
remain undischarged or unstayed for a period of 60 days after such
judgment or judgments become final and non-appealable; and
(6) the Company or any Significant Subsidiary (A) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (B) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (C) consents to the appointment of a custodian of it or
for substantially all of its property, (D) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it or
(E) makes a general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters a judgment, decree
or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any Bankruptcy Law,
which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any Significant Subsidiary, (B) appoint a custodian of the
Company or any Significant Subsidiary or for substantially all of its
property or (C) order the winding-up or liquidation of its affairs; and
such judgment, decree or order shall remain unstayed and in effect for a
period of 60 consecutive days.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
Section 6.01(6) or (7) with respect to the Company) occurs and is continuing
and has not been waived pursuant to Section 6.04, the Trustee may, and the
Trustee upon
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the request of Holders of 25% in principal amount of the outstanding
Securities shall, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, declare the principal of
all the Securities, together with accrued and unpaid interest and
premium, if any, to be due and payable by notice in writing to the
Company and the Trustee specifying the respective Event of Default and
that it is a "notice of acceleration" (the "Acceleration Notice"), and
the same (i) shall become immediately due and payable or (ii) if there
are any amounts outstanding under the Credit Facility, shall become due
and payable upon the first to occur of an acceleration under the Credit
Facility or five Business Days after receipt by the Company and the
Representative under the Credit Facility of such Acceleration Notice
(unless all Events of Default specified in such Acceleration Notice have
been cured or waived). If an Event of Default specified in Section
6.01(6) or (7) with respect to the Company occurs and is continuing with
respect to the Company, then such amount shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of the Trustee or any Securityholder. At any time after a
declaration of acceleration with respect to the Securities, the Holders
of a majority in principal amount of the Securities then outstanding (by
notice to the Trustee) may rescind and cancel a declaration of
acceleration and its consequences if (i) the rescission would not
conflict with any judgment or decree of a court of competent
jurisdiction, (ii) all existing Events of Default have been cured or
waived, except non-payment of the principal amount of and any accrued
interest on the Securities that has become due solely by such declaration
of acceleration, (iii) to the extent the payment of such interest is
lawful, interest (at the same rate as specified in the Securities) on
overdue installments of interest and overdue payments of principal, which
has become due otherwise than by such declaration of acceleration, has
been paid, (iv) the Company has paid the Trustee its reasonable
compensation and reimbursed the Trustee for its expenses, disbursements
and advances and (v) in the event of the cure or waiver of a Default or
Event of Default of the type described in Sections 6.01(6) and (7), the
Trustee shall have received an Officers' Certificate and an Opinion of
Counsel that such Default or Event of Default has been cured or waived
and the Trustee shall be entitled to conclusively rely upon such
Officers' Certificate and Opinion of Counsel. No such rescission shall
affect any subsequent Default or impair any right consequent thereto.
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SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, premium or interest, if any, on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are cumulative
to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default in the payment of the principal amount of or interest on any Security
as specified in clauses (1) and (2) of Section 6.01.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it, including, without limitation, any remedies
provided for in Section 6.03. Subject to Section 7.01, however, the Trustee
may, in its discretion, refuse to follow any direction that conflicts with any
law or this Indenture, that the Trustee determines may be unduly prejudicial to
the rights of another Securityholder, or that may involve the Trustee in
personal liability; provided that the Trustee may take any other action deemed
proper by the Trustee, in its discretion, that is not inconsistent with such
direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
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(1) the Holder gives to the Trustee notice of a continuing Event
of Default;
(2) Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue
the remedy;
(3) such Holders offer to the Trustee indemnity or security
against any loss, liability or expense to be incurred in compliance with
such request which is reasonably satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer of satisfactory indemnity or
security; and
(5) during such 45-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium and interest on a
Security, on or after the respective due dates expressed in such Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest at the rate set forth in the
Securities and such further amount as shall be sufficient to cover the costs
and
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expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relating to the Company or
any other obligor upon the Securities, any of their respective creditors or any
of their respective property, and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Securityholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07. The Company's payment
obligations under this Section 6.09 shall be secured in accordance with the
provisions of Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Sections 6.09 and 7.07;
Second: if the Holders are forced to proceed against the Company
directly without the Trustee, to Holders for their collection costs;
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Third: to Holders for amounts due and unpaid on the Securities for
principal, premium and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities
for principal and interest, respectively; and
Fourth: to the Company or any other obligor on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent Person would exercise or use under the circumstances in
the conduct of its own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
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(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture or the TIA and no duties, covenants,
responsibilities or obligations shall be implied in this Indenture that
are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to
the Trustee and conforming to the requirements of this Indenture.
However, as to any certificates or opinions which are required by any
provision of this Indenture to be delivered or provided to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree with the Company. Assets
held in trust by the Trustee need not be segregated from other assets except to
the extent required by law.
(g) In the absence of bad faith, negligence or wilful misconduct
on the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely and shall be fully protected in acting
or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 10.04 and 10.05. The
Trustee shall not be liable for and shall be fully protected in respect
of any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent or
attorney appointed with due care.
(d) The Trustee shall not be liable for any action that it takes
or omits to take in good faith that it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
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Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled, upon
reasonable notice to the Company, to examine the books, records, and
premises of the Company, personally or by agent or attorney.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders of the Securities pursuant to the
provisions of this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred by it in compliance with such
request, order or direction.
(g) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this
Indenture and the Securities shall be full and complete authorization and
protection from liability with respect to any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, any
Subsidiary or Unrestricted Subsidiary, or their respective Affiliates, with the
same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and
7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, and it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this Indenture or the
Securities other than the Trustee's certificate of authentication.
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SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 60 days after such
Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal of, premium or interest on, any
Security, including an accelerated payment and the failure to make payment on
the Change of Control Payment Date pursuant to a Change of Control Offer or on
the Proceeds Purchase Date pursuant to a Net Proceeds Offer and, except in the
case of a failure to comply with Article Five, the Trustee may withhold the
notice if and so long as its Board of Directors, the executive committee of its
Board of Directors or a committee of its directors and/or Trust Officers in
good faith determines that withholding the notice is in the interest of the
Securityholders. The Trustee shall not be deemed to have knowledge of a
Default or Event of Default other than (i) any Event of Default occurring
pursuant to Section 6.01(1), 6.01(2) or 4.01; or (ii) any Default or Event of
Default of which a Trust Officer shall have received written notification or
obtained actual knowledge.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each February 1 of each year beginning with
February 1, 1998, the Trustee shall, to the extent that any of the events
described in TIA Section 313(a) occurred within the previous twelve months,
but not otherwise, mail to each Securityholder a brief report dated as of such
date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each stock
exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee if the Securities
become listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as may be agreed upon by the Company and
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the Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses, disbursements
and advances incurred or made by it in connection with the performance of its
duties and the discharge of its obligations under this Indenture. Such
expenses shall include the reasonable fees and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee and its agents, employees,
officers, stockholders and directors for, and hold them harmless against, any
loss, liability or expense incurred by them except for such actions to the
extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this
trust including the reasonable costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance
of any of their rights, powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee or any agent,
employee, officer, stockholder or director of the Trustee, for which it may
seek indemnity. The Company shall defend the claim and the Trustee and its
agents, officers, employees, stockholders and directors shall cooperate in the
defense. The Trustee and its agents, officers, employees, stockholders and
directors may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel; provided that the Company will not be
required to pay such fees and expenses if it assumes the Trustee's defense and
there is no conflict of interest between the Company and the Trustee in
connection with such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all assets or money
held or collected by the Trustee, in its capacity as Trustee, except assets or
money held in trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services shall be paid to the extent allowed under any
Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing at
least 10 days in advance. The Holders of a majority in principal amount of the
outstanding Securities may remove the Trustee by so notifying the Company and
the Trustee and may appoint a successor Trustee with the Company's consent. A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only with the successor Trustee's acceptance of
appointment as provided in this Section. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Promptly after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession
to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities may petition any
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court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided that such
corporation shall be otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(2). The Trustee (or in the
case of a corporation included in a bank holding company system, the related
bank holding company) shall have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition. In addition, if the Trustee is a corporation included in a bank
holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA Section 310(a)(2). The
Trustee shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(1) any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
The provisions of TIA Section 310 shall apply to the Company and any other
obligor of the Securities.
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SECTION 7.11. Preferential Collection of
Claims Against the Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein. The provisions of TIA Section 311 shall apply to the
Company and any other obligor of the Securities.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
This Indenture shall cease to be of further effect and the
obligations of the Company under the Securities and this Indenture shall
terminate (except that the obligations under Sections 7.07, 8.04 and 8.05 shall
survive the effect of this Article Eight) when all outstanding Securities
theretofore authenticated and issued have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder.
In addition, at the Company's option, either (a) the Company shall
be deemed to have been Discharged from any and all obligations with respect to
the Securities ("legal defeasance") after the applicable conditions set forth
below have been satisfied or (b) the Company shall cease to be under any
obligation to comply with any term, provision or condition set forth in Article
Four (except that the Company's obligations under Sections 4.01 and 4.02 shall
survive) and Section 5.01 ("covenant defeasance") after the applicable
conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities U.S. Legal Tender or U.S. Government
Obligations or a combination thereof that, through the payment of
interest thereon and principal amounts in respect thereof in accordance
with their terms, will be sufficient, in the opinion of a nationally
recognized firm of independent public
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accountants expressed in a written certification thereof delivered to the
Trustee, to pay all amounts of principal of and interest on the
Securities on the dates such installments of interest or principal
amounts are due in accordance with the terms of such Securities, as well
as the Trustee's fees and expenses; provided that no deposits made
pursuant to this Section 8.01(1) shall cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA; and
provided, further, that, as confirmed by an Opinion of Counsel, no such
deposit shall result in the Company, the Trustee or the trust becoming or
being deemed to be an "investment company" under the Investment Company
Act of 1940;
(2) No Event of Default or Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit after
giving effect to such deposit;
(3) The Company shall have delivered to the Trustee an Opinion of
Counsel, subject to certain qualifications, to the effect that (i) the
Funds will not be subject to any rights of any other holders of
Indebtedness of the Company, and (ii) the Funds so deposited will not be
subject to avoidance under applicable Bankruptcy Law;
(4) The Company shall have paid or duly provided for payment of
all amounts then due to the Trustee pursuant to Section 7.07;
(5) No such deposit will result in a Default under this Indenture
or a breach or violation of, or constitute a default under, any other
instrument or agreement (including, without limitation, the New Credit
Facility) to which the Company or any of its Subsidiaries is a party or
by which it or its property is bound;
(6) Subject to the satisfaction of the conditions set forth in
subparagraphs (1) through (5) above, (a) the Company shall be deemed to
have completed legal defeasance if the Company shall have delivered to
the Trustee an Opinion of Counsel confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service, a ruling, or (ii) since the date of this Indenture there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
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that, the Holders of the Securities will not recognize income, gain or
loss for federal income tax purposes as a result of such legal defeasance
and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
legal defeasance had not occurred and (b) the Company shall be deemed to
have completed covenant defeasance if the Company shall have delivered to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the Securities will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(7) An Officers' Certificate and an Opinion of Counsel to the
effect that all conditions precedent to the defeasance have been complied
with.
Notwithstanding the foregoing, the Opinion of Counsel required by
subparagraph 7 above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the Maturity Date within one year, or (iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
"Discharged" means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same upon compliance by the
Company with the provisions of this Section), except (i) the rights of the
Holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest on such Securities when
such payments are due, (ii) the Company's obligations with respect to the
Securities under Sections 2.03 through 2.07, 7.07 and 7.08 and (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder.
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"Funds" means the aggregate amount of U.S. Legal Tender and/or U.S.
Government Obligations deposited with the Trustee pursuant to this Article
Eight.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of
which the full faith and credit of the United States of America is pledged.
SECTION 8.02. Acknowledgment of Discharge by Trustee.
Subject to Section 8.05, after (i) the conditions of Section 8.01
have been satisfied and (ii) the Company has delivered to the Trustee an
Opinion of Counsel, stating that all conditions precedent referred to in clause
(i) above relating to the satisfaction and discharge of this Indenture have
been complied with, the Trustee upon written request of the Company shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture except for those surviving obligations specified in this Article
Eight.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust Funds deposited with it pursuant to
Section 8.01. It shall apply the Funds through the Paying Agent and in
accordance with this Indenture to the payment of principal amounts and accrued
and unpaid interest on the Securities.
SECTION 8.04. Repayment to the Company.
The Trustee and the Paying Agent shall promptly pay to the Company
any Funds held by them for the payment of principal amounts or interest that
remains unclaimed for one year; provided, however, that the Trustee or such
Paying Agent may, at the expense of the Company, cause to be published once in
a newspaper of general circulation in the City of New York or mailed to each
Holder, notice that such Funds remain unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication or mailing, any unclaimed balance of such Funds then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to
the Funds must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person and all liability
of the Trustee and Paying Agent with respect to such Funds shall cease.
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SECTION 8.05. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Funds by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or Paying Agent is
permitted to apply all such Funds in accordance with Section 8.01; provided,
however, that if the Company has made any payment of interest of any Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from Funds held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture, the Escrow Agreement
or the Securities without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not adversely affect the rights of any
Holder in any material respect;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(5) to make any other change that does not adversely affect in
any material respect the rights of any Securityholders hereunder;
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provided that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate, each stating that such amendment or
supplement complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee, together, with the written consent of the Holder
or Holders of at least a majority in principal amount of the outstanding
Securities may amend or supplement this Indenture, the Escrow Agreement or the
Securities, without notice to any other Securityholders. Subject to Sections
6.04 and 6.07, the Holder or Holders of a majority in aggregate principal
amount of the outstanding Securities may waive compliance by the Company with
any provision of this Indenture or the Securities without notice to any other
Securityholder. No amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, shall, directly or indirectly, without the consent of
each Holder of each Security affected thereby:
(1) reduce the amount of Securities whose Holders must consent to
an amendment;
(2) reduce the rate of or change the time for payment of
interest, including defaulted interest, on any Securities;
(3) reduce the principal of or change the fixed maturity of any
Securities, or change the date on which any Securities may be subject to
redemption or repurchase, or reduce the redemption or repurchase price
therefor;
(4) make any Securities payable in money other than that stated
in the Securities and this Indenture;
(5) make any change in provisions of this Indenture protecting
the right of each Holder of a Security to receive payment of principal
of, premium and interest on such Security on or after the due date
thereof or to bring suit to enforce such payment or permitting Holders of
a majority in principal amount of Securities to waive Defaults or Events
of Default; or
(6) after the Company's obligation to purchase the Securities
arises under Section 4.14, 4.15 or 4.19, amend,
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modify or change the obligation of the Company to consummate a Change of
Control Offer, a Net Proceeds Offer or a special offer or waive any
default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective (as provided in Section 9.04), the Company shall mail to the
Holders affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 9.03. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. Subject to the following paragraph, any such
Holder or subsequent Holder may revoke the consent as to his Security or
portion of his Security by notice to the Trustee or the Company received before
the date on which the Trustee receives an Officers' Certificate certifying that
the Holders of the requisite principal amount of Securities have consented (and
not theretofore revoked such consent) to the amendment, supplement or waiver
(at which time such amendment, supplement or waiver shall become effective).
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be at least 30 days
prior to the first solicitation of such consent. If a record date is fixed,
then
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notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 120
days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (6) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security;
provided that any such waiver shall not impair or affect the right of any
Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates without
the consent of such Holder.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to and adopted in accordance with this Article Nine;
provided that the Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights, duties
or immunities under this Indenture. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate each stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Such Opinion of Counsel shall not be an expense
of the Trustee.
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ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Securities, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article 10, the Indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on the Securities are hereby expressly made subordinate and
subject in right of payment as provided in this Article 10 to the prior payment
in full in cash or Cash Equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, of all Senior Indebtedness.
This Article 10 shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of or continue to hold
Senior Indebtedness; and such provisions are made for the benefit of the
holders of Senior Indebtedness; and such holders are made obligees hereunder
and they or each of them may enforce such provisions.
SECTION 10.02. Payment Over of Proceeds upon
Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, whether voluntary or involuntary or (b)
any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents or, as acceptable to
the holders of Senior Indebtedness, in any other manner, of all amounts
due on or in respect of all Senior Indebtedness, or provision shall be
made for such payment, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character (other
than a payment or distribution in the form of Permitted Junior
Securities) on
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account of principal of, premium, if any, or interest on the Securities;
and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (excluding
Permitted Junior Securities), by set-off or otherwise, to which the
Holders or the Trustee would be entitled but for the provisions of this
Article 10 shall be paid by the liquidating trustee or agent or other
Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver of liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash, Cash Equivalents or, as
acceptable to the holders of Senior Indebtedness, in any other manner, of
all Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section 10.02, the Trustee or the Holder of any Security shall
have received any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, including,
without limitation, by way of set-off or otherwise, in respect of
principal of, premium, if any, and interest on the Securities before all
Senior Indebtedness is paid in full or payment thereof provided for, then
and in such event such payment or distribution (excluding Permitted
Junior Securities) shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other Person making payment or distribution of assets
of the Company for an application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full in cash, Cash Equivalents or, as acceptable to the
holders of Senior Indebtedness, any other manner, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
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The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in Article 5 hereof.
SECTION 10.03. Suspension of Payment When Senior
Indebtedness in Default.
(a) Unless Section 10.02 hereof shall be applicable, after the
occurrence of a Payment Default no payment or distribution of any assets of the
Company of any kind or character (excluding Permitted Junior Securities) shall
be made by or on behalf of the Company, including, without limitation, by way
of set-off or otherwise, for or on account of principal of, premium, if any, or
interest on the Securities or on account of the purchase, redemption,
defeasance or other acquisition of Securities unless and until such Payment
Default shall have been cured or waived in writing or shall have ceased to
exist or the Senior Indebtedness as to which such Payment Default relates shall
have been discharged or paid in full in cash or Cash Equivalents, after which
the Company shall resume making any and all required payments in respect of the
Securities, including any missed payments.
(b) Unless Section 10.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
and upon receipt by the Trustee and the Company from any holder of Designated
Senior Indebtedness (the "Representative") of written notice of such
occurrence, no payment or distribution of any assets of the Company of any kind
or character (excluding Permitted Junior Securities) shall be made by the
Company on account of any principal of, premium, if any, or interest on the
Securities or on account of the purchase, redemption, defeasance or other
acquisition of Securities for a period ("Payment Blockage Period") commencing
on the date of receipt by the Trustee of such notice, unless and until
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the earliest to occur of the following events: (w) more than 179 days shall
have elapsed since the date of receipt of such written notice by the Trustee,
(x) such Non-Payment Event of Default shall have been cured or waived in
writing or shall have ceased to exist, (y) such Designated Senior Indebtedness
shall have been discharged or paid in full in cash or Cash Equivalents or (z)
such Payment Blockage Period shall have been terminated by written notice to
the Company or the Trustee from the Representative initiating such Payment
Blockage Period, or the holders of at least a majority in principal amount of
such issue of Designated Senior Indebtedness, after which, in the case of
clause (w), (x), (y) or (z), the Company shall resume making any and all
required payments in respect of the Securities, including any missed payments.
Notwithstanding any other provisions of this Indenture, no Non-Payment Event of
Default which existed or was continuing on the date of the commencement of any
Payment Blockage Period shall be, or be made, the basis for the commencement of
a second Payment Blockage Period unless such event of default shall have been
cured or waived for a period of not less than 90 consecutive days. In no event
shall a Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the notice referred to in this Section 10.03(b) (the
"Initial Blockage Period"). Any number of additional Payment Blockage Periods
may be commenced during the Initial Blockage Period; provided, however, that no
such additional Payment Blockage Period shall extend beyond the Initial
Blockage Period. After the expiration of the Initial Blockage Period, no
Payment Blockage Period may be commenced under this Section 10.03(b) until at
least 180 consecutive days have elapsed from the last day of the Initial
Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee
or the Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 10.03, then and in such event such payment
shall be paid over and delivered forthwith to the Representative initiating the
Payment Blockage Period, in trust for distribution to the holders of Senior
Indebtedness or, if no amounts are then due in respect of Senior Indebtedness,
promptly returned to the Company, or otherwise as a court of competent
jurisdiction shall direct.
SECTION 10.04. Trustee's Relation to Senior
Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only the
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covenants and obligations of the Trustee as are specifically set forth in this
Article 10, and no implied covenants or obligations of the Trustee with respect
to the holders of Senior Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary or other
duty to the holders of Senior Indebtedness, and the Trustee shall not be liable
to any holder of Senior Indebtedness if it shall mistakenly pay over or deliver
to Holders, the Company or any other Person moneys or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article 10 or
otherwise.
SECTION 10.05. Subrogation to Rights of Holders
of Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article 10, and no payments over pursuant to the provisions of this
Article 10 to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of all
amounts payable under the Senior Indebtedness of the Company, then and in such
case the Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in full
in cash or Cash Equivalents.
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SECTION 10.06. Provisions Solely to Define Relative Rights.
The provisions of this Article 10 are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on
the one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (a) impair, as among the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of, premium, if any, and interest on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders
of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon a Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness (1) in
any case, proceeding, dissolution, liquidation or other winding-up, assignment
for the benefit of creditors or other marshaling of assets and liabilities of
the Company referred to in Section 10.02 hereof, to receive, pursuant to and in
accordance with such Section, cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder, or (2) under the conditions
specified in Section 10.03, to prevent any payment prohibited by such Section
or enforce their rights pursuant to Section 10.03(c) hereof.
The failure to make a payment on account of principal of, premium,
if any, or interest on the Securities by reason of any provision of this
Article 10 shall not be construed as preventing the occurrence of a Default or
an Event of Default hereunder.
SECTION 10.07. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy,
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insolvency, receivership proceedings, or otherwise, the timely filing of a
claim for the unpaid balance of the indebtedness of the Company owing to such
Holder in the form required in such proceedings and the causing of such claim
to be approved. If the Trustee does not file such a claim prior to 30 days
before the expiration of the time to file such a claim, the holders of Senior
Indebtedness, or any Representative, may file such a claim on behalf of Holders
of the Securities.
SECTION 10.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.08, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in
this Article 10 or the obligations hereunder of the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following:
(1) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Indebtedness or any instrument evidencing the
same or any agreement under which Senior Indebtedness is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (3) release any Person liable in any
manner for the collection or payment of Senior Indebtedness; and (4) exercise
or refrain from exercising any rights against the Company and any other Person;
provided, however, that in no event shall any such actions limit the right of
the Holders of the Securities to take any action to accelerate the maturity of
the Securities pursuant to Article 6 hereof or to pursue any rights or remedies
hereunder or under applicable laws if the taking of such action does not
otherwise violate the terms of this Indenture.
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SECTION 10.09. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee at its Corporate Trust Office in respect of the
Securities. Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of this Section 10.09, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section 10.09 at least five Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security), then, anything
herein contained to the contrary notwithstanding but without limiting the
rights and remedies of the holders of Senior Indebtedness or any trustee,
fiduciary or agent therefor, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which may
be received by it within five Business Days prior to date of such application;
nor shall the Trustee be charged with knowledge of the curing of any such
default or the elimination of the act or condition preventing any such payment
unless and until the Trustee shall have received an Officers' Certificate to
such effect.
(b) Subject to the provisions of Section 7.01 hereof, the Trustee
shall be entitled to rely on the delivery to it of a written notice to the
Trustee and the Company by a Person representing itself to be a holder of
Senior Indebtedness (or a trustee, fiduciary, agent or other representative
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee, fiduciary, agent or other representative therefor);
provided, however, that failure to give such notice to the Company shall not
affect in any way the ability of the Trustee to rely on such notice. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any
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Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 10, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article 10, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 10.10. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article 10, the Trustee, subject to the provisions of Section 7.01
hereof, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article 10; provided that the
foregoing shall apply only if such court has been fully apprised of the
provisions of this Article 10.
SECTION 10.11. Rights of Trustee as a Holder of
Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 10 with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article 10 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
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SECTION 10.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 10 shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article 10 in addition to or in place of the
Trustee.
SECTION 10.13. No Suspension of Remedies.
Nothing contained in this Article 10 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Article 6 or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any,
under this Article 10 of the holders, from time to time, of Senior
Indebtedness.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
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if to the Company:
Capstar Radio Broadcasting Partners, Inc.
600 Congress Avenue
Suite 1400
Austin, TX 78701
Attention: Chief Financial Officer
with a copy to:
Vinson & Elkins L.L.P.
2001 Ross Avenue
Suite 3700
Dallas, Texas 75201
Attention: Michael D. Wortley and
Jeffrey A. Chapman
if to the Trustee:
U.S. Trust Company of Texas, N.A.
2001 Ross Avenue
Suite 2700
Dallas, Texas 75201
Attention: Corporate Trust Department
The Company and the Trustee by written notice to each other may
designate additional or different addresses for notices. Any notice or
communication to the Company or the Trustee shall be deemed to have been given
or made as of the date so delivered if personally delivered; when answered
back, if telexed; when receipt is acknowledged, if faxed; and five (5) calendar
days after mailing if sent by registered or certified mail, postage prepaid
(except that a notice of change of address shall not be deemed to have been
given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA Section 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory
to the Trustee, stating that, in the opinion of the signers, all
conditions precedent to be performed by the Company, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Company, if
any, provided for in this Indenture relating to the proposed action have
been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.07, shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is reasonably necessary to enable
him to express an informed
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opinion as to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York, Dallas, Texas or at such place of payment are not required to
be open. If a payment date is a Legal Holiday at such place, payment may be
made at such place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A past, present or future director, officer, employee, stockholder
or incorporator, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creations. Each Securityholder by accepting a Security waives
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and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 11.11. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together shall represent the
same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
104
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the date first written above.
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
By:
------------------------------
Name:
Title:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
------------------------------
Name:
Title:
105
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING
CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUER AND
THE TRANSFER AGENT, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE.
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CAPSTAR RADIO BROADCASTING PARTNERS, INC.
9 1/4% Senior Subordinated Note due 2007, Series A
No. $
CAPSTAR RADIO BROADCASTING PARTNERS, INC., a Delaware corporation
(the "Company"), for value received, promises to pay to CEDE & CO. or
registered assigns, the principal sum of Dollars,
on July 1, 2007.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
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Trustee's Certificate of Authentication
This is one of the 9 1/4% Senior Subordinated Notes due 2007,
Series A referred to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
--------------------------
Authorized Signatory
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(REVERSE OF SECURITY)
9 1/4% Senior Subordinated Note due 2007, Series A
1. Principal and Interest. CAPSTAR RADIO BROADCASTING PARTNERS,
INC., a Delaware corporation (the "Company"), promises to pay the principal of
this Security and any interest on the principal amount of this Security at the
rate per annum shown above subject to the following paragraph. The Company
will pay interest semi-annually in arrears on each January 1 and July 1 (each
an "Interest Payment Date") and at stated maturity, commencing January 1, 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
On the Issue Date, the Company's obligations on the Securities will
consist of (1) the obligation to pay interest on the aggregate principal amount
of the Securities and to pay $8,538,000 aggregate principal amount of the
Securities, plus 1% of the aggregate principal amount of the Securities in the
Event of a Special Redemption or a Change of Control Offer, (2) the obligation
to make a Special Offer in accordance with the Indenture, and (3) the
obligation to instruct the Escrow Agent to release the Escrow Funds to the
Trustee to pay the holders of the Securities and the obligation to pay 1% of
the aggregate principal amount of Securities being redeemed in the event of a
Special Redemption. At the time of the release of the Escrow Funds to the
Company upon the consummation of a Pending Acquisition, an aggregate principal
amount of the Securities equal to the amount of Escrow Funds so released
automatically will convert into an obligation of the Company to pay principal,
premium (if any) and interest with respect thereto. The Company will have no
obligation to make payment on the Securities except as described above until
the Escrow Funds are no longer held in the Escrow Account for the benefit of
the holders of the Securities and the Trustee, and the holders of the
Securities and the Trustee may look only to the Escrow Funds for payment of
additional amounts until such time.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Securities and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date
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109
even if the Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal, premium and interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts ("U.S.
Legal Tender"). However, the Company may pay principal, premium and interest
by its check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, U.S. Trust Company of
Texas, N.A. (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice
to the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture. The Company issued the Securities under an
Indenture, dated as of June 17, 1997 (the "Indenture"), between the Company and
the Trustee. This Security is one of a duly authorized issue of Securities of
the Company designated as its 9 1/4% Senior Subordinated Notes due 2007 (the
"Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $200,000,000, which may be issued under the
Indenture. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and the TIA for a statement of them. The Securities
are general unsecured obligations of the Company. Each Holder, by accepting a
Security, agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time. Capitalized terms
used herein and not defined herein have the meanings ascribed thereto in the
Indenture.
5. Redemption. (a) The Securities may be redeemed (subject to
contractual and other restrictions with respect thereto and to the legal
availability of funds therefor) at any time on or after July 1, 2002, in whole
or in part, at the Company's option, at the redemption prices (expressed as
percentages of the principal amount thereof) set forth below, plus accrued and
unpaid interest, if any, to the redemption date if redeemed during the 12-month
period beginning July 1 of each of the years set forth below:
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YEAR PERCENTAGE
- ---- ----------
2002 ....................................................... 104.625%
2003 ....................................................... 103.083%
2004 ....................................................... 101.542%
2005 and thereafter ........................................ 100.000%
(b) In addition, prior to July 1, 2001, the Company may, at its
option, use the net cash proceeds of one or more Public Equity Offerings or
Major Asset Sales to redeem up to 25% of the aggregate principal amount of the
Securities originally issued at a redemption price equal to 109.250% of the
aggregate principal amount thereof at the redemption date of the Securities so
redeemed plus accrued interest, if any, thereon to the date of redemption;
provided, however, that after any such redemption, at least 75% in aggregate
principal amount of Securities originally issued remains outstanding
immediately after giving effect to such redemption. Any such redemption will
be required to occur on or prior to the date that is one year after the receipt
by the Company of the proceeds of a Public Equity Offering or Major Asset Sale.
The Company shall effect such redemption on a pro rata basis.
(c) In addition, prior to July 1, 2002, upon the occurrence of a
Change of Control, the Company will have the option to redeem the Securities in
whole but not in part (a "Change of Control Redemption") at a redemption price
equal to 100% of the principal amount of the Securities plus the Applicable
Premium. In order to effect a Change of Control Redemption, the Company must
send a notice to each holder of Securities, which notice shall govern the terms
of the Change of Control Redemption. Such notice must be mailed to holders of
Securities within 30 days following the date the Change of Control occurred
(the "Change of Control Redemption Date") and state that the Company is
effecting a Change of Control Redemption in lieu of a Change of Control Offer.
"Applicable Premium" means, with respect to a Security at any
Change of Control Redemption Date, the greater of (i) 1.0% of the principal
amount of such Security and (ii) the excess of (A) the present value at such
time of (1) the redemption price of such Security at July 1, 2002 (such
redemption price being described under Section 5(a) hereof) plus (2) all
required interest payments due on such Security through July 1, 2002 computed
using a discount rate equal to the Treasury Rate plus 100 basis points over (B)
the principal amount of such Security.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a
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constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
business days prior to the Change of Control Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source or
similar market data)) most nearly equal to the period from the Change of
Control Redemption Date to July 1, 2002; provided, however, that if the period
from the Change of Control Redemption Date to July 1, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given except that if the period from the Change of Control Redemption Date to
July 1, 2002 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
(d) Under certain circumstances, the Company is required to make
a Special Redemption of Securities. In such case, the Company shall redeem
Securities at a redemption price equal to 101% of the principal amount of such
Securities, plus accrued and unpaid interest to the date of the Special
Redemption (the "Special Redemption Price") and direct the Escrow Agent to
release the Escrow Funds to the Trustee to pay, together with other amounts
deposited with the Trustee, the Special Redemption Price to the holders of the
Securities being redeemed.
6. Subordination. The Indebtedness evidenced by the Securities
is, to the extent and in the manner provided in the Indenture, subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness as defined in the Indenture, and this Security is issued subject
to such provisions.
7. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at such Holder's registered address, except
in the case of a Special Redemption, in respect of which notice of redemption
shall be given at least three Business Days prior to the date of redemption.
Securities in denominations larger than $1,000 may be redeemed in part.
8. Change of Control Offer. In the event of a Change of
Control, upon the satisfaction of the conditions set forth in the Indenture,
the Company shall be required to offer to repurchase all or a portion of the
then outstanding
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Securities pursuant to a Change of Control Offer at a purchase price equal to
101% of the principal amount thereof, plus, without duplication, all accrued
and unpaid interest, if any, to the Change of Control Payment Date.
9. Limitation on Disposition of Assets. Section 4.15 of the
Indenture provides that after certain Asset Sales (as defined in the
Indenture), and subject to further limitations contained therein, the Company
will make an offer to purchase certain amounts of the Securities in accordance
with the procedures set forth in the Indenture.
10. Denominations; Transfer; Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register the transfer of or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental charges
payable in connection therewith as permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities during a period
beginning 15 days before the mailing of a redemption notice for any Securities
or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of a Security
shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee and the Paying Agent will
pay the money back to the Company. After that, all liability of the Trustee
and such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the Company at
any time deposits with the Trustee U.S. Legal Tender or U.S. Government
Obligations sufficient to pay the principal of, premium and interest on the
Securities to redemption or maturity and complies with the other provisions of
the Indenture relating thereto, the Company will be discharged from certain
provisions of the Indenture and the Securities (including certain covenants,
but excluding its obligation to pay the principal of, premium and interest on
the Securities).
14. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture or the Securities may be amended or supplemented with
the written consent of the Holders of at least a majority in aggregate
principal amount of the Securities then outstanding, and any existing Default
or Event of
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113
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated
Securities, or comply with Article Five of the Indenture or make any other
change that does not adversely affect in any material respect the rights of any
Holder of a Security.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness and issue Preferred Stock, engage in
certain Asset Swaps, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Subsidiaries and merge or consolidate
with any other Person, sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
16. Successors. When a successor assumes, in accordance with the
Indenture, all the obligations of its predecessor under the Securities and the
Indenture, the predecessor will be released from those obligations.
17. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Securities then outstanding may declare all the Securities to be due
and payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated
to enforce the Indenture or the Securities unless it has been offered indemnity
or security reasonably satisfactory to it. The Indenture permits, subject to
certain limitations therein provided, Holders of a majority in aggregate
principal amount of the Securities then outstanding to direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders of
Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines in good faith
that withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity,
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114
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries, Unrestricted Subsidiaries or their respective
Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No past, present or future
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be valid until the
Trustee or authenticating agent manually signs the certificate of
authentication on this Security.
21. Governing Law. The laws of the State of New York shall
govern this Security and the Indenture, without regard to principles of
conflict of laws.
22. Abbreviations and Defined Terms. Customary abbreviations may
be used in the name of a Holder of a Security or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the accuracy of
such numbers as printed on the Securities and reliance may be placed only on
the other identification numbers printed hereon.
24. Registration Rights. Pursuant to the Registration Rights
Agreement, the Company will be obligated upon the occurrence of certain events
to consummate an exchange offer pursuant to which the Holder of this Security
shall have the right to exchange this Series A Security for the Company's 9
1/4% Senior Subordinated Notes due 2007, Series B, which have been registered
under the Securities Act, in like principal amount and having terms identical
in all material respects as the Series A Securities. The Holders shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other
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115
conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
25. Escrow of Proceeds; Special Offer; Special Redemption. On
the Issue Date, the Company will deposit into escrow for the benefit of the
Holders $191,462,000 of the proceeds of the offering of the Securities. The
Escrow Funds will be released on the terms and conditions set forth in the
Escrow Agreement. If the GulfStar Transaction has not been consummated prior
to September 30, 1997 or the Company determines that the GulfStar Transaction
cannot be consummated prior to September 30, 1997 or any Escrow Funds remain in
the Escrow Account on March 31, 1998, the Company will be required to offer to
purchase the Securities. Under certain circumstances, the Company shall make a
Special Redemption of the Securities at a redemption price of 101% of the
principal amount thereof, plus accrued and unpaid interest to the date of
redemption.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
CAPSTAR RADIO BROADCASTING PARTNERS, INC., 600 Congress Avenue, Suite 1400,
Austin, Texas 78701.
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- -----------------------------------
- --------------------------------------------------------------------------------
(please print or type name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer the Security on the books of the Company with full power
of substitution in the premises.
Dated:
------------------ --------------------------------------------------
NOTICE: The signature on this
assignment must correspond with
the name as it appears upon the
face of the within Security in
every particular without alteration
or enlargement or any change
whatsoever and be guaranteed by the
endorser's bank or broker.
Signature Guarantee:
----------------------------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.15 [ ] Section 4.19 [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Section 4.14, Section 4.15 or Section 4.19 of the
Indenture, state the amount: $_____________
Date: Your Signature:
------------------- -----------------------------------
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee:
-------------------------------------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
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EXHIBIT B
[FORM OF SERIES B SECURITY]
CAPSTAR RADIO BROADCASTING PARTNERS, INC.
9 1/4% Senior Subordinated Note due 2007, Series B
No. $
CAPSTAR RADIO BROADCASTING PARTNERS, INC., a Delaware corporation
(the "Company"), for value received, promises to pay to CEDE & CO. or
registered assigns, the principal sum of Dollars,
on July 1, 2007.
Interest Payment Dates: January 1 and July 1
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
CAPSTAR RADIO BROADCASTING
PARTNERS, INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
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Trustee's Certificate of Authentication
This is one of the 9 1/4% Senior Subordinated Notes due 2007,
Series B referred to in the within-mentioned Indenture.
Dated:
U.S. TRUST COMPANY OF
TEXAS, N.A., as Trustee
By:
--------------------------
Authorized Signatory
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(REVERSE OF SECURITY)
9 1/4% Senior Subordinated Note due 2007, Series A
1. Principal and Interest. CAPSTAR RADIO BROADCASTING PARTNERS,
INC., a Delaware corporation (the "Company"), promises to pay the principal of
this Security and any interest on the principal amount of this Security at the
rate per annum shown above subject to the following paragraph. The Company
will pay interest semi-annually in arrears on each January 1 and July 1 (each
an "Interest Payment Date") and at stated maturity, commencing January 1, 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
On the Issue Date, the Company's obligations on the Securities will
consist of (1) the obligation to pay interest on the aggregate principal amount
of the Securities and to pay $8,538,000 aggregate principal amount of the
Securities, plus 1% of the aggregate principal amount of the Securities in the
Event of a Special Redemption or a Change of Control Offer, (2) the obligation
to make a Special Offer in accordance with the Indenture, and (3) the
obligation to instruct the Escrow Agent to release the Escrow Funds to the
Trustee to pay the holders of the Securities and the obligation to pay 1% of
the aggregate principal amount of Securities being redeemed in the event of
Special Redemption. At the time of the release of the Escrow Funds to the
Company upon the consummation of a Pending Acquisition, an aggregate principal
amount of the Securities equal to the amount of Escrow Funds so released
automatically will convert into an obligation of the Company to pay principal,
premium (if any) and interest with respect thereto. The Company will have no
obligation to make payment on the Securities except as described above until
the Escrow Funds are no longer held in the Escrow Account for the benefit of
the holders of the Securities and the Trustee, and the holders of the
Securities and the Trustee may look only to the Escrow Funds for payment of
additional amounts until such time.
The Company shall pay interest on overdue principal and on overdue
installments of interest from time to time on demand at the rate borne by the
Securities and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the Persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date
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even if the Securities are cancelled on registration of transfer or
registration of exchange after such Record Date. Holders must surrender
Securities to a Paying Agent to collect principal payments. The Company shall
pay principal, premium and interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts ("U.S.
Legal Tender"). However, the Company may pay principal, premium and interest
by its check payable in such U.S. Legal Tender. The Company may deliver any
such interest payment to the Paying Agent or to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar. Initially, U.S. Trust Company of
Texas, N.A. (the "Trustee") will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice
to the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar or co-Registrar.
4. Indenture. The Company issued the Securities under an
Indenture, dated as of June 17, 1997 (the "Indenture"), between the Company and
the Trustee. This Security is one of a duly authorized issue of Securities of
the Company designated as its 9 1/4% Senior Subordinated Notes due 2007 (the
"Securities"), limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $200,000,000, which may be issued under the
Indenture. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and the TIA for a statement of them. The Securities
are general unsecured obligations of the Company. Each Holder, by accepting a
Security, agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time. Capitalized terms
used herein and not defined herein have the meanings ascribed thereto in the
Indenture.
5. Optional Redemption. (a) The Securities may be redeemed
(subject to contractual and other restrictions with respect thereto and to the
legal availability of funds therefor) at any time on or after July 1, 2002, in
whole or in part, at the Company's option, at the redemption prices (expressed
as percentages of the principal amount thereof) set forth below, plus accrued
and unpaid interest, if any, to the redemption date if redeemed during the 12-
month period beginning July 1 of each of the years set forth below:
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YEAR PERCENTAGE
- ---- ----------
2002 . . . . . . . . . . . . . . . . . . . . . . . .. . . 104.625%
2003 . . . . . . . . . . . . . . . . . . . . . . . .. . . 103.083%
2004 . . . . . . . . . . . . . . . . . . . . . . . .. . . 101.542%
2005 and thereafter . . . . . . . . . . . . . . . . .. . . 100.000%
(b) In addition, prior to July 1, 2001, the Company
may, at its option, use the net cash proceeds of one or more Public Equity
Offerings or Major Asset Sales to redeem up to 25% of the aggregate principal
amount of the Securities originally issued at a redemption price equal to
109.250% of the aggregate principal amount thereof at the redemption date of
the Securities so redeemed plus accrued interest, if any, thereon to the date
of redemption; provided, however, that after any such redemption, at least 75%
in aggregate principal amount of Securities originally issued remains
outstanding immediately after giving effect to such redemption. Any such
redemption will be required to occur on or prior to the date that is one year
after the receipt by the Company of the proceeds of a Public Equity Offering or
Major Asset Sale. The Company shall effect such redemption on a pro rata
basis.
(c) In addition, prior to July 1, 2002, upon the
occurrence of a Change of Control, the Company will have the option to redeem
the Securities in whole but not in part (a "Change of Control Redemption") at a
redemption price equal to 100% of the principal amount of the Securities plus
the Applicable Premium. In order to effect a Change of Control Redemption, the
Company must send a notice to each holder of Securities, which notice shall
govern the terms of the Change of Control Redemption. Such notice must be
mailed to holders of Securities within 30 days following the date the Change of
Control occurred (the "Change of Control Redemption Date") and state that the
Company is effecting a Change of Control Redemption in lieu of a Change of
Control Offer.
"Applicable Premium" means, with respect to a Security at
any Change of Control Redemption Date, the greater of (i) 1.0% of the principal
amount of such Security and (ii) the excess of (A) the present value at such
time of (1) the redemption price of such Security at July 1, 2002 (such
redemption price being described under Section 5(a)) plus (2) all required
interest payments due on such Security through July 1, 2002 computed using a
discount rate equal to the Treasury Rate plus 100 basis points over (B) the
principal amount of such Security.
"Treasury Rate" means the yield to maturity at the time
of computation of United States Treasury securities with a
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constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
business days prior to the Change of Control Redemption Date (or, if such
Statistical Release is no longer published, any publicly available source or
similar market data)) most nearly equal to the period from the Change of
Control Redemption Date to July 1, 2002; provided, however, that if the period
from the Change of Control Redemption Date to July 1, 2002 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given except that if the period from the Change of Control Redemption Date to
July 1, 2002 is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
(d) Under certain circumstances, the Company is
required to make a Special Redemption of Securities. In such case, the Company
shall redeem such Securities at a redemption price equal to 101% of the
principal amount of such Securities, plus accrued and unpaid interest to the
date of the Special Redemption (the "Special Redemption Price") and direct the
Escrow Agent to release the Escrow Funds to the Trustee to pay, together with
other amounts deposited with the Trustee, the Special Redemption Price to the
holders of the Securities being redeemed.
6. Subordination. The Indebtedness evidenced by
the Securities is, to the extent and in the manner provided in the Indenture,
subordinated and subject in right of payment to the prior payment in full of
all Senior Indebtedness as defined in the Indenture, and this Security is
issued subject to such provisions.
7. Notice of Redemption. Notice of redemption will
be mailed at least 30 days but not more than 60 days before the Redemption Date
to each Holder of Securities to be redeemed at such Holder's registered
address, except in the case of a Special Redemption, in respect of which notice
of redemption shall be given at least three Business Days prior to the date of
redemption. Securities in denominations larger than $1,000 may be redeemed in
part.
8. Change of Control Offer. In the event of a
Change of Control, upon the satisfaction of the conditions set forth in the
Indenture, the Company shall be required to offer to repurchase all or a
portion of the then outstanding
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Securities pursuant to a Change of Control Offer at a purchase price equal to
101% of the principal amount thereof, plus, without duplication, all accrued
and unpaid interest, if any, to the Change of Control Payment Date.
9. Limitation on Disposition of Assets. Section
4.15 of the Indenture provides that after certain Asset Sales (as defined in
the Indenture), and subject to further limitations contained therein, the
Company will make an offer to purchase certain amounts of the Securities in
accordance with the procedures set forth in the Indenture.
10. Denominations; Transfer; Exchange. The
Securities are in registered form, without coupons, in denominations of $1,000
and integral multiples of $1,000. A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture. The
Registrar need not register the transfer of or exchange any Securities during a
period beginning 15 days before the mailing of a redemption notice for any
Securities or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered Holder of
a Security shall be treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for one year, the Trustee and the
Paying Agent will pay the money back to the Company. After that, all liability
of the Trustee and such Paying Agent with respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If
the Company at any time deposits with the Trustee U.S. Legal Tender or U.S.
Government Obligations sufficient to pay the principal of, premium and interest
on the Securities to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Securities (including certain
covenants, but excluding its obligation to pay the principal of, premium and
interest on the Securities).
14. Amendment; Supplement; Waiver. Subject to
certain exceptions, the Indenture or the Securities may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding, and any existing
Default or Event of
B-7
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Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated
Securities, or comply with Article Five of the Indenture or make any other
change that does not adversely affect in any material respect the rights of any
Holder of a Security.
15. Restrictive Covenants. The Indenture imposes
certain limitations on the ability of the Company and its Subsidiaries to,
among other things, incur additional Indebtedness and issue Preferred Stock,
engage in certain Asset Swaps, enter into transactions with Affiliates, create
dividend or other payment restrictions affecting Subsidiaries and merge or
consolidate with any other Person, sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its assets or adopt a plan of
liquidation. Such limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
16. Successors. When a successor assumes, in
accordance with the Indenture, all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
17. Defaults and Remedies. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities then outstanding may declare all the
Securities to be due and payable in the manner, at the time and with the effect
provided in the Indenture. Holders of Securities may not enforce the Indenture
or the Securities except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it has been offered
indemnity or security reasonably satisfactory to it. The Indenture permits,
subject to certain limitations therein provided, Holders of a majority in
aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal or interest) if it determines in good
faith that withholding notice is in their interest.
18. Trustee Dealings with Company. The Trustee
under the Indenture, in its individual or any other capacity,
B-8
126
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries, Unrestricted Subsidiaries or their respective
Affiliates as if it were not the Trustee.
19. No Recourse Against Others. No past, present or
future stockholder, director, officer, employee or incorporator, as such, of
the Company shall have any liability for any obligation of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication. This Security shall not be
valid until the Trustee or authenticating agent manually signs the certificate
of authentication on this Security.
21. Governing Law. The laws of the State of New
York shall govern this Security and the Indenture, without regard to principles
of conflict of laws.
22. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Security or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Company has caused CUSIP numbers to be printed on the Securities as a
convenience to the Holders of the Securities. No representation is made as to
the accuracy of such numbers as printed on the Securities and reliance may be
placed only on the other identification numbers printed hereon.
24. Escrow of Proceeds; Special Offer; Special
Redemption. On the Issue Date, the Company will deposit into escrow for the
benefit of the Holders $191,462,000 of the proceeds of the offering of the
Securities. The Escrow Funds will be released on the terms and conditions set
forth in the Escrow Agreement. If the GulfStar Transaction has not been
consummated prior to September 30, 1997 or the Company determines that the
GulfStar Transaction cannot be consummated prior to September 30, 1997 or any
Escrow Funds remain in the Escrow Account on March 31, 1998, the Company will
be required to offer to purchase the Securities. Under certain circumstances,
the Company shall make a Special Redemption of the Securities
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at a redemption price of 101% of the principal amount thereof, plus accrued and
unpaid interest to the date of redemption.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be
made to: CAPSTAR RADIO BROADCASTING PARTNERS, INC., 600 Congress Avenue, Suite
1400, Austin, Texas 78701.
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[FORM OF ASSIGNMENT]
I or we assign to
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER
- --------------------------------------------------------------------------------
(please print or type name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- --------------------------------------------------------------------------------
attorney to transfer the Security on the books of the Company with full power
of substitution in the premises.
Dated:
------------------------ ---------------------------------------
NOTICE: The signature on this
assignment must correspond with the
name as it appears upon the face of the
within Security in every particular
without alteration or enlargement or
any change whatsoever and be guaranteed
by the endorser's bank or broker.
Signature Guarantee:
----------------------------------------------------------
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129
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by
the Company pursuant to Section 4.14 or Section 4.15 of the Indenture, check
the appropriate box:
Section 4.14 [ ] Section 4.15 [ ] Section 4.19 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.14, Section 4.15 or Section 4.19
of the Indenture, state the amount: $_____________
Date: Your Signature:
------------------- -------------------------------------
(Sign exactly as
your name appears
on the other side
of this Security)
Signature Guarantee:
---------------------------------------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee)
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EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required
in the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR
DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
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EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 9 1/4% Senior Subordinated Notes due 2007, Series A and 9 1/4%
Senior Subordinated Notes due 2007, Series B (the "Securities"),
of Capstar Radio Broadcasting Partners, Inc.
This Certificate relates to $_______ principal amount of
Securities held in the form of* ___ a beneficial interest in a Global Security
or* _______ physical securities by ______ (the "Transferor").
The Transferor:*
/ / has requested by written order that the Registrar deliver
in exchange for its beneficial interest in the Global Security held by the
Depositary a physical security or physical securities in definitive, registered
form of authorized denominations and an aggregate number equal to its
beneficial interest in such Global Security (or the portion thereof indicated
above); or
/ / has requested that the Registrar by written order to
exchange or register the transfer of a physical security or physical
securities.
In connection with such request and in respect of each
such Security, the Transferor does hereby certify that the Transferor is
familiar with the Indenture relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 2.16 of such
Indenture, and that the transfer of this Security does not require registration
under the Securities Act of 1933, as amended (the "Act") because*:
/ / Such Security is being acquired for the Transferor's own
account, without transfer (in satisfaction of Section 2.16(a)(II)(A) or Section
2.16(d)(i)(A) of the Indenture).
/ / Such Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Act), in reliance on
Rule 144A.
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132
/ / Such Security is being transferred to an institutional
"accredited investor" (within the meaning of subparagraphs (a)(1), (2), (3) or
(7) of Rule 501 under the Act.
/ / Such Security is being transferred in reliance on
Regulation S under the Act.
/ / Such Security is being transferred in reliance on
Rule 144 under the Act.
/ / Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act
other than Rule 144A or Rule 144 under the Act to a person other than an
institutional "accredited investor."
--------------------------------
[INSERT NAME OF TRANSFEROR]
By:
----------------------------
[Authorized Signatory]
Date:
-----------------
*Check applicable box.
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133
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
Capstar Radio Broadcasting Partners, Inc.
c/o U.S. Trust Company of Texas, N.A.
Dear Sirs:
This certificate is delivered to request a transfer of $ million in
principal amount of 9 1/4% Senior Subordinated Notes due 2007 (the "Notes") of
Capstar Radio Broadcasting Partners, Inc. (the "Company"). Upon transfer, the
Notes would be registered in the name of the new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933 (the
"Securities Act")) purchasing Notes for our own account or for the account of
such an institutional "accredited investor" and we are acquiring the Notes not
with a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act. We have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risk of our investment in the shares of the Notes and we invest in or purchase
securities similar to the Notes in the normal course of our business. We and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
2. We understand that the shares of the Notes have not been
registered under the Securities Act and, unless so registered, may not be sold
except as permitted in the following sentence. We agree on our own behalf and
on behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date which is two years
after the later of the date of original issue and the last date on which the
Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to
the
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134
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, that is purchasing for its own account or for the account of
such an institutional "accredited investor," or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or
accounts be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will
not apply subsequent to the Resale Restriction Termination Date. If any resale
or other transfer of any of the Notes is proposed to be made pursuant to clause
(e) above prior to the Resale Restriction Termination Date, the transferor
shall deliver a letter from the transferee substantially in the form of this
letter to the Company and the U.S. Trust Company of Texas, N.A. (the
"Trustee"), which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act and that it is acquiring such Notes for
investment purposes and not for distribution in violation of the Securities
Act. Each purchaser acknowledges that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Notes pursuant to clause (d), (e) or (f)
above to require the delivery of an opinion of counsel, certificates and/or
other information satisfactory to the Company and the Transfer Agent.
TRANSFEREE:
By:
-------------------------
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