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EXHIBIT 4.45
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INDENTURE
DATED AS OF NOVEMBER 17, 1998
AMONG
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, AS ISSUER
THE GUARANTORS NAMED HEREIN
AND
THE BANK OF NEW YORK, AS TRUSTEE
$750,000,000
8% SENIOR NOTES DUE 2008
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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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).................................................................................................N.A.
(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
PAGE
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
Section 1.01. Definitions......................................................................1
Section 1.02. Incorporation by Reference of TIA...............................................16
Section 1.03. Rules of Construction...........................................................16
ARTICLE 2. THE SECURITIES........................................................................................17
Section 2.01. Form and Dating.................................................................17
Section 2.02. Execution and Authentication....................................................18
Section 2.03. Registrar and Paying Agent......................................................19
Section 2.04. Paying Agent to Hold Money in Trust.............................................19
Section 2.05. Holder Lists....................................................................19
Section 2.06. Transfer and Exchange...........................................................19
Section 2.07. Replacement Securities..........................................................31
Section 2.08. Outstanding Securities..........................................................32
Section 2.09. Treasury Securities.............................................................32
Section 2.10. Temporary Securities............................................................32
Section 2.11. Cancellation....................................................................33
Section 2.12. Defaulted Interest..............................................................33
Section 2.13. CUSIP Number....................................................................33
Section 2.14. Deposit of Moneys...............................................................33
ARTICLE 3. REDEMPTION............................................................................................33
Section 3.01. Notices to Trustee..............................................................33
Section 3.02. Selection of Securities To Be Redeemed..........................................34
Section 3.03. Notice of Redemption............................................................34
Section 3.04. Effect of Notice of Redemption..................................................35
Section 3.05. Deposit of Redemption Price.....................................................35
Section 3.06. Securities Redeemed in Part.....................................................35
ARTICLE 4. COVENANTS.............................................................................................35
Section 4.01. Payment of Securities...........................................................35
Section 4.02. Maintenance of Office or Agency.................................................35
Section 4.03. Limitation on Restricted Payments...............................................36
Section 4.04. Corporate Existence.............................................................38
Section 4.05. Payment of Taxes and Other Claims...............................................39
Section 4.06. Maintenance of Properties and Insurance.........................................39
Section 4.07. Compliance Certificate; Notice of Default.......................................39
Section 4.08. Compliance with Laws............................................................40
Section 4.09. SEC Reports.....................................................................40
Section 4.10. Waiver of Stay, Extension or Usury Laws.........................................40
Section 4.11. Limitation on Transactions with Affiliates......................................41
Section 4.12. Limitation on Incurrence of Additional Indebtedness.............................41
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Section 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries......................................................41
Section 4.14. [Indentionally Omitted].........................................................42
Section 4.15. Change of Control...............................................................42
Section 4.16. Limitation on Asset Sales.......................................................43
Section 4.17. Limitation on Preferred Stock of Subsidiaries...................................46
Section 4.18. Limitation on Liens.............................................................46
Section 4.19. Guarantees of Certain Indebtedness..............................................46
Section 4.20. Limitation on Sale and Leaseback Transaction....................................46
Section 4.21. Limitation on Line of Business..................................................46
Section 4.22. Limitation on Asset Swaps.......................................................47
ARTICLE 5. SUCCESSOR CORPORATION.................................................................................47
Section 5.01. When Company May Merge, Etc.....................................................47
Section 5.02. Successor Corporation Substituted...............................................48
ARTICLE 6. DEFAULT AND REMEDIES..................................................................................48
Section 6.01. Events of Default...............................................................48
Section 6.02. Acceleration....................................................................49
Section 6.03. Other Remedies..................................................................50
Section 6.04. Waiver of Past Defaults.........................................................50
Section 6.05. Control by Majority.............................................................50
Section 6.06. Limitation on Suits.............................................................50
Section 6.07. Rights of Holders To Receive Payment............................................51
Section 6.08. Collection Suit by Trustee......................................................51
Section 6.09. Trustee May File Proofs of Claim................................................51
Section 6.10. Priorities......................................................................51
Section 6.11. Undertaking for Costs...........................................................52
ARTICLE 7. TRUSTEE 52
Section 7.01. Duties of Trustee...............................................................52
Section 7.02. Rights of Trustees..............................................................53
Section 7.03. Individual Rights of Trustee....................................................54
Section 7.04. Trustee's Disclaimer............................................................54
Section 7.05. Notice of Default...............................................................54
Section 7.06. Reports by Trustee to Holders...................................................55
Section 7.07. Compensation and Indemnity......................................................55
Section 7.08. Replacement of Trustee..........................................................56
Section 7.09. Successor Trustee by Merger, Etc................................................56
Section 7.10. Eligibility; Disqualification...................................................56
Section 7.11. Preferential Collection of Claims Against the Company...........................57
ARTICLE 8. DISCHARGE OF INDENTURE; DEFEASANCE....................................................................57
Section 8.01. Termination of the Company's Obligations........................................57
Section 8.02. Acknowledgment of Discharge by Trustee..........................................59
Section 8.03. Application of Trust Money......................................................59
Section 8.04. Repayment to the Company........................................................59
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Section 8.05. Reinstatement...................................................................59
ARTICLE 9. AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................................................60
Section 9.01. Without Consent of Holder.......................................................60
Section 9.02. With Consent of Holders.........................................................60
Section 9.03. Compliance with TIA.............................................................61
Section 9.04. Revocation and Effect of Consents...............................................61
Section 9.05. Notation on or Exchange of Securities...........................................61
Section 9.06. Trustee To Sign Amendments, Etc.................................................62
ARTICLE 10. [Intentionally Omitted]..............................................................................62
ARTICLE 11. GUARANTEES OF THE SECURITIES.........................................................................62
Section 11.01. Guarantees.....................................................................62
Section 11.02. Execution and Delivery of the Guarantees.......................................63
Section 11.03. Additional Guarantors..........................................................64
Section 11.04. Limitation of Guarantors' Liability............................................64
Section 11.05. Guarantors May Consolidate, etc., on Certain Terms.............................64
Section 11.06. Contribution...................................................................65
Section 11.07. Waiver of Subrogation..........................................................65
ARTICLE 12. [Intentionally Omitted]..............................................................................65
ARTICLE 13. MISCELLANEOUS........................................................................................65
Section 13.01. TIA Controls...................................................................65
Section 13.02. Notices........................................................................66
Section 13.03. Communications by Holders with Other Holders...................................66
Section 13.04. Certificate and Opinion as to Conditions Precedent.............................66
Section 13.05. Statements Required in Certificate.............................................67
Section 13.06. Rules by Trustee, Paying Agent, Registrar......................................67
Section 13.07. Legal Holidays.................................................................67
Section 13.08. Governing Law..................................................................67
Section 13.09. No Adverse Interpretation of Other Agreements..................................67
Section 13.10. No Recourse Against Others.....................................................68
Section 13.11. Successors.....................................................................68
Section 13.12. Duplicate Originals............................................................68
Section 13.13. Severability...................................................................68
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EXHIBITS
Exhibit A-1 Form of Global Security
Exhibit A-2 Form of Regulation S Temporary Global Security
Exhibit B Form of Certificate of Transfer
Exhibit C Form of Certificate of Exchange
Exhibit D Form of Certificate from Acquiring Institutional Accredited
Investor
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Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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INDENTURE, dated as of November 17, 1998, among Chancellor
Media Corporation of Los Angeles, a Delaware corporation (the "COMPANY"), and
each subsidiary guarantor named on the signature pages hereto (collectively the
"GUARANTORS") and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company's 8% Senior Notes due 2008 (the "SECURITIES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A GLOBAL SECURITY" means a global security in the form of
Exhibit A-1 hereto bearing the Global Security Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Securities sold in reliance on Rule 144A.
"8-1/8% NOTES" means the $500.0 million aggregate principal
amount of 8-1/8% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an indenture (the "8-1/8% NOTES INDENTURE"), dated as of December
22, 1997, as amended, as the same may be modified or amended from time to time
and future refinancings thereof.
"8-3/4% NOTES" means the $200.0 million aggregate principal
amount of 8-3/4% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an indenture (the "8-3/4% NOTES INDENTURE"), dated as of June 24,
1997, as amended, as the same may be modified or amended from time to time and
future refinancings thereof.
"9% NOTES" means the $750.0 million aggregate principal
amount of 9% Senior Subordinated Notes due 2008 of the Company, issued pursuant
to an indenture (the "9% NOTES INDENTURE"), dated as of September 30, 1998, as
amended, as the same may be modified or amended from time to time and future
refinancings thereof.
"9-3/8% NOTES" means the $200.0 million aggregate principal
amount of 9-3/8% Senior Subordinated Notes due 2004 of the Company, issued
pursuant to an indenture (the "9-3/8% NOTES INDENTURE"), dated as of February
14, 1996, as amended, as the same may be modified or amended from time to time
and future refinancings thereof.
"9-3/8% NOTES ISSUE DATE" means February 14, 1996.
"10-1/2% NOTES" means the $100.0 million aggregate principal
amount of 10-1/2% Senior Subordinated Notes due 2007 of the Company, issued
pursuant to an amended and restated indenture (the "10-1/2% NOTES INDENTURE"),
dated as of December 19, 1996, and amended and restated as of October 28, 1997,
as amended, as the same may be modified or amended from time to time and future
refinancings thereof.
"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.
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"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 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.
"ADJUSTED NET ASSETS" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under the Guarantee of such Guarantor at such date, and (y) the
present fair salable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee, as they become absolute and matured.
"AFFILIATE" of any Person means any other Person who,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person. 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 4.16, Asset Sales shall not include (a) a transaction
or series of related transactions for which the Company or its Subsidiaries
receive aggregate consideration of less than $500,000, (b) transactions
permitted under Section 4.22, (c) transactions permitted under Section 5.01 or
(d) any Contract Buy Out.
"ASSET SWAP" means the execution of a definitive agreement,
subject only to approval of the Federal Communications Commission and other
customary closing conditions, that the Company in good faith believes will be
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 which individually or in the aggregate is material to
the Asset Swap shall be deemed to be a new Asset Swap.
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"ATTRIBUTABLE VALUE" in respect of a sale and leaseback
arrangement of any property means, as at the time of determination, the greater
of (i) the fair market value of the property subject to such arrangement (as
determined in good faith by the Board of Directors of the Company) or (ii) the
present value (discounted at the interest rate borne by the Securities,
compounded annually) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such arrangement.
"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx 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.
"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.
"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, including each class of
common stock and Preferred 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.
"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 Xxxxx'x
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
Xxxxx'x 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
which invest substantially all their assets in securities of the types
described in clauses (i) through (v) above.
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"CEDEL" means Cedel Bank, S.A.
"CHANCELLOR BROADCASTING" means Chancellor Broadcasting
Company, a Delaware corporation that was merged with and into Evergreen
Mezzanine Holdings Corporation, a Delaware corporation, on the Merger Date.
"CHANCELLOR MEDIA" means Chancellor Media Corporation, a
Delaware corporation formerly known as Evergreen Media Corporation, and its
successors.
"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 this Indenture), other than to
Xxxxx Muse or any of its Affiliates, officers, and directors (the "PERMITTED
HOLDERS"); or (ii) a majority of the Board of Directors of Chancellor Media,
CMHC or 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 Chancellor Media, CMHC or the Company.
"CHANGE OF CONTROL DATE" has the meaning provided in Section
4.15.
"CHANGE OF CONTROL OFFER" has the meaning provided in Section
4.15.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning provided in
Section 4.15.
"CMHC" means Chancellor Mezzanine Holdings Corporation, a
Delaware corporation formerly known as Evergreen Mezzanine Holdings
Corporation, and its successors.
"COMMODITY AGREEMENT" means any commodity futures contract,
commodity option or other similar agreement or arrangement 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 sum (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 non-recurring 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 interest portion
of any deferred payment obligation, (d) all commissions, discounts and other
fees and charges owed with respect to letters of credit, bankers' acceptance
financing or similar facilities, and (e) 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.
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"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 $500,000 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
transaction 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 and (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.
"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 reducing Consolidated Net
Income of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary or nonrecurring item).
"CONTINUING DIRECTOR" means, as of the date of determination,
any Person who (i) was a member of the Board of Directors of Chancellor Media,
CMHC or the Company on the date of this Indenture, (ii) was nominated for
election or elected to the Board of Directors of Chancellor Media, CMHC or the
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.
"CONTRACT BUY OUT" means the involuntary disposition or
termination (including, without limitation, pursuant to buy out) of a contract
between a media representation company and a client station.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution and delivery of this
Indenture is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx
00000.
"CRBC" means Chancellor Radio Broadcasting Company, a
Delaware corporation that was merged with and into the Company on the Merger
Date.
"CREDIT AGREEMENT" means the Credit Agreement, dated on or
about February 14, 1996, among Chancellor Broadcasting, CRBC, the lenders
thereto and Bankers Trust Company as managing agent, as such agreement may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including by
way of adding Subsidiaries of CRBC as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
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"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.
"CUSTODIAN" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"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 an Event
of Default.
"DEFINITIVE SECURITY" means a certificated Security
registered in the name of the Holder thereof and issued in accordance with
Section 2.06 hereof, in the form of Exhibit A-1 hereto except that such
Security shall not bear the Global Security Legend and shall not have the
"Schedule of Exchanges of Interests in the Global Security" attached thereto.
"DEPOSITARY" means, with respect to the Securities issuable
or issued in whole or in part in global form, the Person specified in Section
2.03 hereof as the Depositary with respect to the Securities, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"DISCHARGED" has the meaning provided in Section 8.01.
"DISQUALIFIED CAPITAL STOCK" means any Capital Stock which,
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 at 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.
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"EXCHANGE OFFER" has the meaning set forth in the
Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set
forth in the Registration Rights Agreement.
"EXCHANGE SECURITIES" means the Securities issued in the
Exchange Offer pursuant to Section 2.06(f) hereof.
"FINANCIAL MONITORING AND OVERSIGHT AGREEMENTS" means the
Financial Monitoring and Oversight Agreement among Xxxxx, Muse & Co. Partners,
L.P., CRBC and Chancellor Broadcasting, as in effect on the 9-3/8% Notes Issue
Date, and the Financial Advisory Agreement among HM2/Management Partners, L.P.,
CRBC and Chancellor Broadcasting, as in effect on the 9-3/8% Notes Issue Date,
or as each is amended in connection with the merger of Chancellor Broadcasting,
CRBC, Chancellor Media, CMHC and the Company on the Merger Date.
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"FUNDS" has 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 SECURITIES" means, individually and collectively,
each of the Restricted Global Securities and the Unrestricted Global
Securities, in the form of Exhibit A-1 and Exhibit A-2 hereto issued in
accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
"GLOBAL SECURITY LEGEND" means the legend set forth in
Section 2.06(g)(ii), which is required to be placed on all Global Securities
issued under this Indenture.
"GUARANTEES" means the guarantees of the Securities on a
senior basis by the Guarantors pursuant to Article Eleven.
"GUARANTORS" means (i) initially, all of the Company's
Subsidiaries on the Issue Date except Xxxx International Limited, Xxxx
Television Sales Limited, Xxxx Radio Sales Limited, National Cable
Communications, L.P., WOYE, Inc., WNZT, Inc., WRPC, Inc., WLDI, Inc., WIO,
Inc., Codena Esterlotempo, Inc., WOQI, Inc., Puerto Rican American
Broadcasting, Inc. and WOQI (FM), Inc. and (ii) each of the Company's
Subsidiaries that, subsequent to the Issue Date, executes a supplemental
indenture in which such Subsidiary agrees to be bound by the terms of this
Indenture as a Guarantor; provided that any Person constituting a Guarantor as
described above shall cease to constitute a Guarantor when its respective
Guarantee is released in accordance with the terms thereof.
"XXXXX MUSE" means Hicks, Muse, Xxxx & Xxxxx Incorporated, a
Texas corporation.
"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 the reimbursement
of any obligor on any letter of credit, bankers' 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 are 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 at 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.
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"INDIRECT PARTICIPANT" means a Person who holds a beneficial
interest in a Global Security through a Participant.
"INITIAL PURCHASERS" means BT Alex. Xxxxx Incorporated, Chase
Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Xxxxx Barney
Inc., pursuant to the Purchase Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"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 $1,000,000, 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.
"ISSUE DATE" means the date of original issuance of the
Series A Securities.
"LEGAL HOLIDAY" has the meaning provided in Section 13.07.
"LEVERAGE RATIO" shall mean, as to any Person, the ratio of
(i) the sum of the aggregate outstanding amount of Indebtedness of such Person
and its Subsidiaries as of the date of calculation on a consolidated basis in
accordance with GAAP to (ii) the Consolidated EBITDA of such Person for the
four full fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to the
date of determination.
For purposes of this definition, the aggregate outstanding
principal amount of Indebtedness of the Person and its Subsidiaries for which
such calculation is made shall be determined on a pro forma basis as if the
Indebtedness giving rise to the need to perform such calculation had been
incurred and the proceeds therefrom had been applied, and all other
transactions in respect of which such Indebtedness is being incurred 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 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 or 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 (and the application of the proceeds thereof), or the
repayment, as the case may be, occurred on the first day of the Four Quarter
Period and (ii) any Asset Sales or Asset
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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 who becomes a Subsidiary as a result of such
Asset Acquisition) incurring, assuming or otherwise becoming liable for
Indebtedness) 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 also including any Consolidated EBITDA associated with
such Asset Acquisition) occurred on the first day of the Four Quarter Period.
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 a fixed rate per 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).
"MATURITY DATE" means November 1, 2008.
"MERGER DATE" means September 5, 1997.
"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.
"NET PROCEEDS OFFER" has the meaning provided in Section
4.16.
"NON-U.S. PERSON" means a person who is not a U.S. person, as
defined in Regulation S.
"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.
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"OFFERING MEMORANDUM" means the Offering Memorandum dated
November 12, 1998 pursuant to which $750.0 million in aggregate principal
amount of the Securities were offered, and any supplement thereto.
"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 13.04 and 13.05, 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 13.04 and 13.05, as they relate to the giving of an
opinion of Counsel.
"PARTICIPANT" means, with respect to the Depositary,
Euroclear or Cedel, a Person who has an account with the Depositary, Euroclear
or Cedel, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Cedel).
"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 4.15 and 4.16, the Paying
Agent shall not be the Company or any Affiliate of the Company.
"PENDING TRANSACTIONS" has the meaning set forth in the
Offering Memorandum.
"PERMITTED INDEBTEDNESS" means, without duplication, (i) the
Securities; (ii) the Guarantees; (iii) Indebtedness of the Company incurred
pursuant to the Credit Agreement in an aggregate principal amount at any time
outstanding not to exceed the sum of the aggregate commitments pursuant to the
Credit Agreement as initially in effect on the 9-3/8% Notes Issue Date; (iv)
the 9-3/8% Notes, the 8-3/4% Notes, the 10-1/2% Notes, the 8-1/8% Notes and the
9% Notes, and the Guarantees thereof; (v) Interest Swap Obligations; provided
that such Interest Swap Obligations are entered into to protect the Company
from fluctuations in interest rates of its Indebtedness; (vi) additional
Indebtedness of the Company or any of its Subsidiaries not to exceed
$10,000,000 in principal amount outstanding at any time (which amount may, but
need not, be incurred under the Senior Credit Facility); (vii) Refinancing
Indebtedness; (viii) Indebtedness owed by the Company to any Wholly-Owned
Subsidiary or by any Subsidiary to the Company or any Wholly-Owned Subsidiary
of the Company; and (ix) guarantees by Subsidiaries of any Indebtedness
permitted to be incurred pursuant to this Indenture.
"PERMITTED INVESTMENTS" means (i) Investments by the Company
or any Subsidiary to acquire the stock or assets of any Person (or Indebtedness
of such Person 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, including, without limitation, media
representation, sale of advertising and such other activities as are incidental
or similar or 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, (ii)
Investments received by the Company or its Subsidiaries as consideration for a
sale of assets, including an Asset Sale effected in compliance with Section
4.16,
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(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,
wholesalers or customers received pursuant to any plan of reorganization or
similar arrangement and (vi) additional Investments in an aggregate amount not
to exceed $2,500,000 at any time outstanding.
"PERMITTED LIENS" means (i) Liens for taxes, assessments and
governmental charges to the extent not required to be paid under this
Indenture, (ii) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens to the extent
not required to be paid under this Indenture, (iii) pledges or deposits to
secure lease obligations or nondelinquent obligations under workers'
compensation, unemployment insurance or similar legislation, (iv) Liens to
secure the performance of public statutory obligations that are not delinquent,
performance bonds or other obligations of a like nature (other than for
borrowed money), in each case incurred in the ordinary course of business, (v)
easements, rights-of-way, restrictions, minor defects or irregularities in
title and other similar charges or encumbrances incurred in the ordinary course
of business not interfering in any material respect with the business of the
Company or its Subsidiaries, (vi) Liens upon specific items of inventory or
other goods and proceeds of any Person securing such Person's obligations in
respect of letters of credit or bankers' acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods in the ordinary course of business, (vii) judgment and
attachment Liens not giving rise to an Event of Default, (viii) leases or
subleases granted to others in the ordinary course of business consistent with
past practice not interfering in any material respect with the business of the
Company or its Subsidiaries, (ix) any interest or title of a lessor in the
property subject to any lease, whether characterized as capitalized or
operating other than any such interest or title resulting from or arising out
of a default by the Company or its Subsidiaries of its obligations under such
lease and (x) Liens arising from filing UCC financing statements for
precautionary purposes in connection with true leases of personal property that
are otherwise permitted under this Indenture and under which the Company or any
of its Subsidiaries is a lessee.
"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 set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"PROCEEDS PURCHASE DATE" shall have the meaning provided in
Section 4.16.
"PRODUCTIVE ASSETS" means assets of a kind used or usable by
the Company and its Subsidiaries in broadcast businesses or businesses
reasonably related thereto, including, without limitation, media
representation, sale of advertising and such other activities as are incidental
or similar or related thereto, and specifically includes assets acquired
through Asset Acquisitions.
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"PUBLIC EQUITY OFFERING" means an underwritten, fully
registered public offering of Capital Stock (other than Disqualified Capital
Stock) of the Company, Chancellor Media, CMHC or upon consummation of the
Capstar Merger, Capstar Broadcasting Corporation, or any of their respective
successors, pursuant to an effective registration statement filed with the
Commission in accordance with the Securities Act, the gross proceeds of which
are at least $150 million; provided, however, that in the case of a Public
Equity Offering by Chancellor Media, CMHC or upon consummation of the Capstar
Merger, Capstar Broadcasting Corporation, or any of their respective
successors, the issuer of the public equity must contribute to the capital of
the Company an amount sufficient to redeem the Notes, if any, called for
redemption in accordance with the terms thereof. For the avoidance of doubt, no
(i) offerings pursuant to rule 144A of the Securities Act, (ii) "best efforts"
offerings (even if registered), or (iii) private placements of capital stock
shall qualify as "Public Equity Offerings."
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of
November 12, 1998 by and among the Company, the Guarantors and the Initial
Purchasers relating to the purchase of $750.0 million aggregate principal
amount of Securities.
"QUALIFIED CAPITAL STOCK" means any Capital Stock that is not
Disqualified Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"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 (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.
"REGISTERED EXCHANGE OFFER" means the consummation of the
offer to exchange the Series B Securities for all of the outstanding Series A
Securities in accordance with the Registration Rights Agreement.
"REGISTRAR" has the meaning provided in Section 2.03.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
relating to $750.0 million aggregate principal amount of Securities and dated
the Issue Date, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"REGULATION S" means Regulation S under the Securities Act.
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"REGULATION S GLOBAL SECURITY" means a Regulation S Temporary
Global Security or Regulation S Permanent Global Security, as appropriate.
"REGULATION S PERMANENT GLOBAL SECURITY" means a permanent
global Security in the form of Exhibit A-1 hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Regulation S
Temporary Global Security upon expiration of the Restricted Period.
"REGULATION S TEMPORARY GLOBAL SECURITY" means a temporary
global Security in the form of Exhibit A-2 hereto bearing the Global Security
Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Securities
initially sold in reliance on Rule 903 of Regulation S.
"RESTRICTED DEFINITIVE SECURITY" means a Definitive Security
bearing the Private Placement Legend.
"RESTRICTED GLOBAL SECURITY" means a Global Security bearing
the Private Placement Legend.
"RESTRICTED PAYMENT" has the meaning provided in Section
4.03.
"RESTRICTED PERIOD" means the 40 day restricted period as
defined in Regulation S. "RESTRICTED SECURITY" as defined in Rule 144A(a)(3)
under the Securities Act; provided, however, that the Trustee shall be entitled
to request and conclusively rely on an Opinion of Counsel with respect to
whether any Security constitutes a Restricted Security.
"RULE 144" means Rule 144 promulgated under the Securities
Act.
"RULE 144A" means Rule 144A promulgated under the Securities
Act.
"RULE 903" means Rule 903 promulgated under the Securities
Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SALE AND LEASEBACK TRANSACTION" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned
by the Company or any Subsidiary at the Issue Date or later acquired, which has
been or is to be sold or transferred by the Company or such Subsidiary to such
Person or to any other Person from whom funds have been or are to be advanced
by such Person on the security of such property.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Series A Securities and Series B
Securities, 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 SEC promulgated thereunder.
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"SENIOR CREDIT FACILITY" means the Second Amended and
Restated Loan Agreement, dated April 25, 1997, as amended from time to time,
among the Company, the lenders from time to time named party thereto, Toronto
Dominion (Texas), Inc., Bankers Trust Company, The Bank of New York,
NationsBank of Texas, N.A. and Union Bank of California, as managing agents,
Toronto Dominion Securities (USA), Inc., as arranging agent, and Toronto
Dominion (Texas), Inc., as administrative agent for the lenders, together with
the related documents thereto (including, without limitation, any guarantee
agreements, stock pledge agreements and other security documents), in each
case, as such agreements may be amended (including any amendment and
restatement thereof), supplemented or otherwise modified from time to time,
including any agreement extending the maturity of, refinancing, replacing or
otherwise restructuring (including by way of adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"SERIES A SECURITIES" means the 8% Senior Notes due 2008,
Series A, issued, authenticated and delivered under this Indenture, as amended
or supplemented from time to time pursuant to the terms of this Indenture.
"SERIES B SECURITIES" means the 8% Senior Notes due 2008,
Series B (the terms of which are identical to the Series A Securities except
that, unless any Series B Securities shall be issued as Private Exchange
Securities (as defined in the Registration Rights Agreement), the Series B
Securities shall be registered under the Securities Act, and shall not contain
the respective legend on the face of the form of the Series A Securities), to
be issued in exchange for the Series A Securities pursuant to the Registered
Exchange Offer and this Indenture or the Private Exchange (as defined in the
Registration Rights Agreement).
"SHELF REGISTRATION" means the Shelf Registration as defined
in the Registration Rights Agreement.
"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.
"SUBSIDIARY," with respect to any Person, (i) means 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. Notwithstanding anything in this Indenture to the
contrary, all references to the Company and its consolidated Subsidiaries or to
financial 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 combined basis in accordance with GAAP
and to financial information prepared on such a combined 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.
"TAX SHARING AGREEMENT" means the Tax Sharing Agreement
between CRBC and Chancellor Broadcasting, as in effect on the 9-3/8% Notes
Issue Date.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
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 (a) any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and (b) who shall have
direct responsibility for the administration of this Indenture.
"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 DEFINITIVE SECURITY" means one or more
Definitive Securities that do not bear and are not required to bear the Private
Placement Legend.
"UNRESTRICTED GLOBAL SECURITY" means a permanent global
Security in the form of Exhibit A-1 attached hereto that bears the Global
Security Legend and that has the "Schedule of Exchanges of Interests in the
Global Security" attached thereto, and that is deposited with or on behalf of
and registered in the name of the Depositary, representing a series of
Securities that do not bear the Private Placement Legend.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of the Company
created after the 9-3/8% Notes 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, (b) the creditors with respect to Indebtedness for borrowed
money of such Subsidiary, having a principal amount in excess of $5,000,000,
have agreed in writing that they have no recourse, direct or indirect, to the
Company or any other Subsidiary of the Company (other than Unrestricted
Subsidiaries), including, without limitation, recourse with respect to the
payment of principal of or interest on any Indebtedness of such Subsidiary and
(c) at the time of designation of such Subsidiary such Subsidiary has no
property or assets (other than de minimis assets resulting from the initial
capitalization of such Subsidiary). Any such designation 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 Officers' Certificate
certifying that such designation complied with the foregoing conditions. Until
otherwise designated by the Board of Directors of the Company, National Cable
Communications, L.P., a Delaware limited partnership, shall be an Unrestricted
Subsidiary.
"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.
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"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:
"COMMISSION" means the SEC.
"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 Company or any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule
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 9-3/8% Notes Issue
Date;
(3) "OR" is not exclusive;
(4) words in the singular include the plural, and words in
the plural include the singular;
(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; and
(6) all references herein and in the Securities to "INTEREST"
on the Securities shall be deemed to include "ADDITIONAL INTEREST" due and
payable pursuant to the Registration Rights Agreement.
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ARTICLE 2.
THE SECURITIES
SECTION 2.01. FORM AND DATING.
(a) General. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibits A-1 and A-2
hereto. The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Security conflicts with
the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.
(b) Global Securities. Securities issued in global form shall
be substantially in the form of Exhibits A-1 or A-2 attached hereto (including
the Global Security Legend thereon and the "Schedule of Exchanges of Interests
in the Global Security" attached thereto). Securities issued in definitive form
shall be substantially in the form of Exhibit A-1 attached hereto (but without
the Global Security Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Security" attached thereto). Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Securities from time to time endorsed thereon and that the
aggregate principal amount of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Security to reflect the amount of
any increase or decrease in the aggregate principal amount of outstanding
Securities represented thereby shall be made by the Trustee or the Custodian,
at the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
(c) Temporary Global Securities. Securities offered and sold
in reliance on Regulation S shall be issued initially in the form of the
Regulation S Temporary Global Security, which shall be deposited on behalf of
the purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel Bank, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of (i) a
written certificate from the Depositary, together with copies of certificates
from Euroclear and Cedel Bank certifying that they have received certification
of non-United States beneficial ownership of 100% of the aggregate principal
amount of the Regulation S Temporary Global Security (except to the extent of
any beneficial owners thereof who acquired an interest therein during the
Restricted Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership interest in
a 144A Global Security bearing a Private Placement Legend, all as contemplated
by Section 2.06(a)(ii) hereof), and (ii) an Officers' Certificate from the
Company. Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Security shall be exchanged for
beneficial interests in Regulation S Permanent Global Securities pursuant to
the Applicable Procedures. Simultaneously with the authentication of Regulation
S Permanent Global Securities, the Trustee shall cancel the Regulation S
Temporary Global Security upon written order of the Company signed by an
Officer. The aggregate principal amount of the Regulation S Temporary Global
Security and the Regulation S Permanent Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and
the Depositary or its nominee, as the case may be, in connection with transfers
of interests as hereinafter provided.
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(d) Euroclear and Cedel Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel
Bank" and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Temporary Global Security and the
Regulation S Permanent Global Securities that are held by Participants through
Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
An Officer shall sign the Securities for the Company by
manual or facsimile signature. Each Guarantor shall execute a Guarantee in the
manner set forth in Section 11.02. The Company's seal shall be reproduced on
the Securities and may be in facsimile form.
If an Officer whose signature is on a Security no longer
holds that office at the time a Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer (an "Authentication Order"), authenticate Securities for original
issue up to the aggregate principal amount stated in paragraph 4 of the
Securities. The aggregate principal amount of Securities outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. 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
Holders or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("REGISTRAR") and an office or agency where Securities may be presented for
payment ("PAYING AGENT"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. If the Company
fails to appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Securities.
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The Company shall, prior to the Record Date, notify the
Paying Agent of any wire transfer instructions for payments that it receives
from Holders.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest on the Securities, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Securities.
SECTION 2.05. HOLDER 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 all Holders and shall otherwise comply with TIA ss. 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 in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Securities and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Securities. A Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. All Global
Securities will be exchanged by the Company for Definitive Securities if (i)
the Company delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Company within 120 days after the
date of such notice from the Depositary or (ii) the Company in its sole
discretion determines that the Global Securities (in whole but not in part)
should be exchanged for Definitive Securities and delivers a written notice to
such effect to the Trustee; provided that in no event shall the Regulation S
Temporary Global Security be exchanged by the Company for Definitive Securities
prior to (x) the expiration of the Restricted Period and (y) the receipt by the
Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under
the Securities Act and provided further, there shall be no continuing Default
or Event of Default. Upon the occurrence of either of the preceding events in
(i) or (ii) above, Definitive Securities shall be registered in such names as
the Depositary shall instruct the Trustee, in writing. Global Securities also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.07
and 2.10 hereof. Every Security executed, authenticated and delivered in
exchange for, or in lieu of, a Global Security or any portion thereof, pursuant
to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be executed,
authenticated and delivered in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for another Security other than as
provided in this Section 2.06(a); however, beneficial interests in a Global
Security may be transferred and exchanged as provided in Section 2.06(b),(c) or
(f) hereof.
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(b) Transfer and Exchange of Beneficial Interests in the
Global Securities. The transfer and exchange of beneficial interests in the
Global Securities shall be effected through the Depositary, in accordance with
the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Securities shall be subject to restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Securities also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global
Security. Beneficial interests in any Restricted Global Security may
be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Security in
accordance with the transfer restrictions set forth in the Private
Placement Legend; provided, however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in the
Temporary Regulation S Global Security may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global
Security may be transferred to Persons who take delivery thereof in
the form of a beneficial interest in an Unrestricted Global Security.
No written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Securities. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with
the Applicable Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a
written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing
the Depositary to cause to be issued a Definitive Security in an
amount equal to the beneficial interest to be transferred or exchanged
and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such
Definitive Security shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall
Definitive Securities be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Security
prior to (x) the expiration of the Restricted Period and (y) the
receipt by the Registrar of any certificates required pursuant to Rule
903 under the Securities Act. Upon consummation of an Exchange Offer
by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Securities. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Securities contained in this Indenture
and the Securities or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global
Securities pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Security. A beneficial interest in any Restricted Global
Security may be transferred to a Person who takes delivery thereof in
the form of a beneficial interest in another Restricted Global
Security if the transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives the following:
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(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Security, then
the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Temporary Global
Security or the Regulation S Global Security, then the
transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications in item (2) thereof;
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Security for Beneficial Interests in the
Unrestricted Global Security. A beneficial interest in any Restricted
Global Security may be exchanged by any holder thereof for a
beneficial interest in an Unrestricted Global Security or transferred
to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Security if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest to
be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Security, a
certificate from such holder in the form of Exhibit
C hereto, including the certifications in item
(1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
beneficial interest in an Unrestricted Global
Security, a certificate from such holder in the form
of Exhibit B hereto, including the certifications in
item (4) thereof;
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and, in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on
transfer contained herein and in the Private
Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Security
cannot be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Security.
(c) Transfer or Exchange of Beneficial Interests for
Definitive Securities.
(i) Beneficial Interests in Restricted Global Securities to
Restricted Definitive Securities. If any holder of a beneficial
interest in a Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security or to
transfer such beneficial interest to a Person who takes delivery
thereof in the form of a Restricted Definitive Security, then, upon
receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Security proposes to exchange such
beneficial interest for a Restricted Definitive Security, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements
of the Securities Act in accordance with Rule 144 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an
exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3)(d) thereof:
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(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Security to be reduced accordingly pursuant
to Section 2.06(h) hereof, and the Company shall execute and
the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Security in the
appropriate principal amount. Any Definitive Security issued
in exchange for a beneficial interest in a Restricted Global
Security pursuant to this Section 2.06(c) shall be registered
in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the
Persons in whose names such Securities are so registered. Any
Definitive Security issued in exchange for a beneficial
interest in a Restricted Global Security pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer
contained therein.
(ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a
beneficial interest in the Regulation S Temporary Global Security may
not be exchanged for a Definitive Security or transferred to a Person
who takes delivery thereof in the form of a Definitive Security prior
to (x) the expiration of the Restricted Period and (y) the receipt by
the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act, except in the case of a
transfer pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 903 or Rule 904.
(iii) Beneficial Interests in Restricted Global Securities to
Unrestricted Definitive Securities. A holder of a beneficial interest
in a Restricted Global Security may exchange such beneficial interest
for an Unrestricted Definitive Security or may transfer such
beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Security only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest,
in the case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Securities
or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Security proposes to
exchange such beneficial interest for a Definitive
Security that does not bear the Private Placement
Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Security proposes to
transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a
Definitive Security that does not bear the Private
Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D) an
Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
(iv) Beneficial Interests in Unrestricted Global Securities
to Unrestricted Definitive Securities. If any holder of a beneficial
interest in an Unrestricted Global Security proposes to exchange such
beneficial interest for a Definitive Security or to transfer such
beneficial interest to a Person who takes delivery thereof in the form
of a Definitive Security, then, upon satisfaction of the conditions
set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the
aggregate principal amount of the applicable Global Security to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver
to the Person designated in the instructions a Definitive Security in
the appropriate principal amount. Any Definitive Security issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Securities to the Persons in
whose names such Securities are so registered. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iv) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Securities for
Beneficial Interests in Global Securities.
(i) Restricted Definitive Securities to Beneficial Interests
in Restricted Global Securities. If any Holder of a Restricted
Definitive Security proposes to exchange such Security for a
beneficial interest in a Restricted Global Security or to transfer
such Restricted Definitive Securities to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global
Security, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive
Security proposes to exchange such Security for a beneficial
interest in a Restricted Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
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(B) if such Restricted Definitive Security is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such Restricted Definitive Security is being
transferred to a Non-U.S. Person in an offshore transaction
in accordance with Rule 903 or Rule 904 under the Securities
Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Security is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such Restricted Definitive Security is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3)(d) thereof;
(F) if such Restricted Definitive Security is being
transferred to the Company or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Security,
and increase or cause to be increased the aggregate principal
amount of, in the case of clause (A) above, the appropriate
Restricted Global Security, in the case of clause (B) above,
the 144A Global Security, and in the case of clause (c)
above, the Regulation S Global Security.
(ii) Restricted Definitive Securities to Beneficial Interests
in Unrestricted Global Securities. A Holder of a Restricted Definitive
Security may exchange such Security for a beneficial interest in an
Unrestricted Global Security or transfer such Restricted Definitive
Security to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Security only if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
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(B) such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive
Securities proposes to exchange such Securities for
a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form
of Exhibit C hereto, including the certifications in
item (1)(c) thereof; or
(2) if the Holder of such Definitive
Securities proposes to transfer such Securities to a
Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global
Security, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D) an
Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(ii), the Trustee shall
cancel the Definitive Securities and increase or cause to be
increased the aggregate principal amount of the Unrestricted
Global Security.
(iii) Unrestricted Definitive Securities to Beneficial
Interests in Unrestricted Global Securities. A Holder of an
Unrestricted Definitive Security may exchange such Security for a
beneficial interest in an Unrestricted Global Security or transfer
such Definitive Securities to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Security
at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Security and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global
Securities.
If any such exchange or transfer from a Definitive Security
to a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D)
or (iii) above at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Securities in an aggregate principal amount equal to the
principal amount of Definitive Securities so transferred.
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(e) Transfer and Exchange of Definitive Securities for
Definitive Securities. Upon request by a Holder of Definitive Securities and
such Holder's compliance with the provisions of this Section 2.06(e), the
Registrar shall register the transfer or exchange of Definitive Securities.
Prior to such registration of transfer or exchange, the requesting Holder shall
present or surrender to the Registrar the Definitive Securities duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) Restricted Definitive Securities to Restricted Definitive
Securities. Any Restricted Definitive Security may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Security if the Registrar receives the
following:
(A) if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule
903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any
other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3)(d) thereof.
(ii) Restricted Definitive Securities to Unrestricted
Definitive Securities. Any Restricted Definitive Security may be
exchanged by the Holder thereof for an Unrestricted Definitive
Security or transferred to a Person or Persons who take delivery
thereof in the form of an Unrestricted Definitive Security if:
(A) such exchange or transfer is effected pursuant
to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Securities or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the
Shelf Registration in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Securities proposes to exchange such
Securities for an Unrestricted Definitive Security,
a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in
item (1)(d) thereof; or
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(2) if the Holder of such Restricted
Definitive Securities proposes to transfer such
Securities to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive
Security, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D),
Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act.
(iii) Unrestricted Definitive Securities to Unrestricted
Definitive Securities. A Holder of Unrestricted Definitive Securities
may transfer such Securities to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Security. Upon receipt of a
request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Securities pursuant to the instructions from
the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Securities
in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Securities tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal
that (x) they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Securities and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Exchange
Offer and (ii) Definitive Securities in an aggregate principal amount equal to
the principal amount of the Restricted Definitive Securities accepted for
exchange in the Exchange Offer. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Securities to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Securities so accepted
Definitive Securities in the appropriate principal amount.
(g) Legends. The following legends shall appear on the face
of all Global Securities and Definitive Securities issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below,
each Global Security and each Definitive Security (and all
Securities issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
ACT) (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)
(1), (2), (3) OR (7) UNDER THE ACT) OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING
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THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X)
XXXXXX XXX XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS HAD FURNISHED ON ITS BEHALF BY A U.S.
BROKER-DEALER) TO THE TRANSFER AGENT A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E) PURSUANT TO
THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF
AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE
PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRANSFER, FURNISH TO THE TRANSFER
AGENT AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
AS USED HEREIN, THE TERMS "OFF-SHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
ACT."
(B) Notwithstanding the foregoing, any Global
Security or Definitive Security issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii), (c)(iv), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and
all Securities issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Security Legend. Each Global Security shall bear
a legend in substantially the following form:
"THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO THE
INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
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(iii) Regulation S Temporary Global Security Legend. The
Regulation S Temporary Global Security shall bear a legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN)."
(h) Cancellation and/or Adjustment of Global Securities. At
such time as all beneficial interests in a particular Global Security have been
exchanged for Definitive Securities or a particular Global Security has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Security shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if
the beneficial interest is being exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in another
Global Security, such other Global Security shall be increased accordingly and
an endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global
Securities and Definitive Securities upon the Company's order or at
the Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Security or to a Holder of a
Definitive Security 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 (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Security selected for redemption in whole
or in part, except the unredeemed portion of any Security being
redeemed in part.
(iv) All Global Securities and Definitive Securities issued
upon any registration of transfer or exchange of Global Securities or
Definitive Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Securities or Definitive Securities
surrendered upon such registration of transfer or exchange.
(v) The Registrar shall not be required (A) to issue, to
register the transfer of or to exchange any Securities during a period
beginning at the opening of business 15 days before the day of any
selection of Securities for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part or (c) to register the transfer of or
to exchange a Security between a record date and the next succeeding
Interest Payment Date.
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(vi) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Company may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Securities and for all
other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Securities and
Definitive Securities in accordance with the provisions of Section
2.02 hereof.
(viii) All certifications, certificates and Opinions of
Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
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. 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 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 and 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.
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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 2.10. TEMPORARY SECURITIES
Until certificates representing 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 certificated Securities but may have variations that the Company
considers appropriate for temporary Securities and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and execute, and the Trustee shall authenticate upon receipt of a
written Authentication Order definitive Securities in exchange for Temporary
Securities.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and 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 of 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 2.12. 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 2.13. CUSIP NUMBER.
The Company in issuing the Securities may use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number 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 number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities. The Company will promptly notify the Trustee of any change in
the CUSIP numbers.
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SECTION 2.14. DEPOSIT OF MONEYS.
Prior to 10:00 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.
ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Securities pursuant to
paragraph 6 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 it wants the Trustee to give notice of redemption to
the Holders (at the Company's expense) at least 30 days (unless a shorter
notice shall be satisfactory to the Trustee) but not more than 90 days before
the Redemption Date. 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 fewer than all of the Securities are to be redeemed, 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, if the Securities are not listed
on a national securities exchange, on a pro rata basis, by lot or in such other
fair and reasonable manner chosen at the discretion of the Trustee; provided,
however, that a redemption pursuant to the provisions of paragraph 6(b) of the
Securities shall be made 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 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 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 (including CUSIP numbers) 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, interest on Securities called for redemption ceases 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 fewer 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 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 which 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, interest
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.
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ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment.
Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
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 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 13.02.
SECTION 4.03. LIMITATION ON RESTRICTED PAYMENTS.
Neither the Company nor any of its Subsidiaries will,
directly or indirectly, (a) declare or pay any dividend or make any
distribution (other than dividends or distributions payable in Qualified
Capital Stock of the Company) on shares of the Company's Capital Stock, (b)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company or any warrants, rights or options to acquire shares of any class
of such Capital Stock, other than 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, (c) make any principal payment on, purchase, defease,
redeem, prepay, decrease or otherwise acquire or retire for value, prior to any
scheduled final maturity, scheduled repayment or scheduled sinking fund
payment, any Indebtedness of the Company or its Subsidiaries that is
subordinate or junior in right of payment to the Securities, or (d) make any
Investment (other than Permitted Investments) (each of the foregoing prohibited
actions set forth in clauses (a), (b), (c) and (d) being referred to as a
"RESTRICTED Payment"), if, at the time of such Restricted Payment or
immediately after giving effect thereto, (i) a Default or an Event of Default
has occurred and is continuing, (ii) the Company is not able to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.12, or (iii) the aggregate amount of Restricted
Payments made by the Company on or after the Merger Date, together with the
aggregate amount of Restricted Payments made by CRBC subsequent to the 9-3/8%
Notes Issue Date and through September 4, 1997 (the amount expended for such
purposes, if other than in cash, being the fair market value of such property
as determined by the respective Board of Directors in good faith) exceeds the
sum of:
(A) (x) 100% of the aggregate Consolidated EBITDA of
CRBC from the 9-3/8% Notes Issue Date through September 4,
1997, plus 100% of the aggregate Consolidated EBITDA of the
Company from and after the Merger
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Date (or, in the event that either such Consolidated EBITDA
shall be a deficit, minus 100% of such deficit), 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 entities and
for the same periods, 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 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 Merger Date of Qualified Capital Stock of the Company,
plus 100% of the aggregate net proceeds, including the fair
market value of property other than cash as previously
determined by the board of directors of CRBC in good faith,
previously received by CRBC from any Person (other than a
Subsidiary of CRBC) from the issuance and sale on or
subsequent to the 9-3/8% Notes Issue Date of Qualified
Capital Stock of CRBC (excluding any net proceeds from
issuances and sales financed directly or indirectly using
funds borrowed from the Company or any Subsidiary of the
Company or from CRBC or any Subsidiary of CRBC, respectively,
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 or CRBC, respectively, upon such conversion or
exchange), 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 subsequent to the
Merger Date, plus 100% of the aggregate net proceeds,
including the fair market value of property other than cash
(valued as provided in clause (iii)(B) above), previously
received by CRBC as a capital contribution on or subsequent
to the 9-3/8% Notes Issue Date (excluding the net proceeds
from one or more Public Equity Offerings by Chancellor Media
or CMHC to the extent used to redeem the Securities on or
after the date of the Indenture).
Notwithstanding the foregoing, the provisions of this Section
4.03 shall not prohibit:
(1) the payment of any dividend or the making of any
distribution within 60 days after the date of its declaration if the dividend
or distribution would have been permitted on the date of declaration;
(2) the acquisition of Capital Stock or warrants, options or
other rights to acquire Capital Stock either (i) solely in exchange for shares
of Qualified Capital Stock or warrants, options or other rights to acquire
Qualified Capital Stock, or (ii) 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;
(3) the acquisition of Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities, either (i) solely
in exchange for shares of Qualified Capital Stock (or warrants, options or
other rights to acquire Qualified Capital Stock) or for Indebtedness of the
Company which is subordinate or junior in right of payment to the Securities,
at least to the extent that the
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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 (ii) 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 Indebtedness of the Company which 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 CRBC to fund the operating expenses of
Chancellor Broadcasting from the 9-3/8% Notes Issue Date through September 4,
1997 and by the Company to fund the operating expenses of CMHC from and after
the Merger Date, in each case in an amount not to exceed $500,000 per annum;
(5) payments by CRBC to Chancellor Broadcasting from the
9-3/8% Notes Issue Date through September 4, 1997 and by the Company to CMHC
from and after the Merger Date, respectively, in each case to make payments
pursuant to (a) the Financial Monitoring and Oversight Agreements or (b) the
Tax Sharing Agreement;
(6) payments by (a) CRBC to repurchase or to enable
Chancellor Broadcasting to repurchase Capital Stock or other securities of
Chancellor Broadcasting from employees of Chancellor Broadcasting or CRBC, in
each case, from the 9-3/8% Notes Issue Date through September 4, 1997, and (b)
by the Company to repurchase or to enable CMHC to repurchase Capital Stock or
other securities of CMHC from employees of CMHC or the Company, in each case,
after the Merger Date, in an aggregate amount not to exceed $5,000,000;
(7) payments by CRBC to Chancellor Broadcasting from the
9-3/8% Notes Issue Date through September 4, 1997, or by the Company to CMHC
from and after the Merger Date, in each case, to enable Chancellor Broadcasting
or CMHC, respectively, to redeem or repurchase stock purchase or similar rights
in an aggregate amount not to exceed $500,000;
(8) payments, not to exceed $100,000 in the aggregate, by
CRBC to Chancellor Broadcasting from the 9-3/8% Notes Issue Date through
September 4, 1997, together with payments by the Company to CMHC after the
Merger Date, in each case to enable Chancellor Broadcasting or CMHC,
respectively, to make cash payments to holders of its Capital Stock in lieu of
the issuance of fractional shares of its Capital Stock; and
(9) payments made pursuant to any merger, consolidated sale
of assets effected in accordance with Section 5.01; provided, however, that no
such payment may be made pursuant to this clause (9) 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) pursuant to Section 4.12 such that after incurring that $1.00 of
additional Indebtedness, the Leverage Ratio would be less than 5.5 to 1;
provided, however, that in the case of clauses 5(a), (6), (7), (8) and (9), no
Default or 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 by the Company on or subsequent to the Merger Date and the aggregate
amount of Restricted Payments made by CRBC subsequent to the 9-3/8% Notes Issue
Date and through September 4, 1997, amounts expended pursuant to clauses (1),
(2), (3) (but only to the extent that Indebtedness is acquired in exchange for,
or with the net proceeds from, the issuance of Qualified Capital Stock or
warrants, options or other rights to acquire
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Qualified Capital Stock), (5)(a), (6), (7), (8) and (9) (including any amounts
previously expended by CRBC pursuant to clauses (1), (2), (3) (but only to the
extent that Indebtedness is acquired in exchange for, or with the net proceeds
from, the issuance of Qualified Capital Stock or warrants, options or other
rights to acquire Qualified Capital Stock), (5)(a), (6), (7), (8) and (9) under
Section 4.03 of the 9-3/8% Notes Indenture) shall be included in such
calculation.
Prior to any Restricted Payment under the first paragraph of
this Section 4.03, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the computation by which the amount available for
Restricted Payments pursuant to such paragraph was determined. The Trustee
shall have no duty or responsibility to determine the accuracy or correctness
of this computation and shall be fully protected in relying on such Officers'
Certificate.
SECTION 4.04. CORPORATE EXISTENCE.
Except as otherwise permitted by Article Five, the Company
shall do or cause to be done all things reasonably 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 the
case may be, no longer reasonably necessary in the conduct of their respective
business.
(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.
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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 copy of the annual report on Form 10-K of the Company
as filed with the SEC or 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.
(c) (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 deliver to the Trustee by registered or certified mail or by
telegram or facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event, notice or other
action as soon as possible and in any event within five Business Days of its
becoming aware of such occurrence.
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. SEC REPORTS.
The Company shall file with the Trustee and provided to the
Securityholders, within 15 days after it files them with the SEC, copies of the
annual reports and of the information, documents, and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company files with the SEC pursuant to Section
13 or 15(d) of the Exchange Act.
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In the event that the Company is no longer required to furnish such reports to
its securityholders pursuant to the Exchange Act, the Company will cause its
consolidated financial statements, comparable to those which would have been
required to appear in annual or quarterly reports, to be delivered to the
Holders of the Securities. The Company shall also comply with the other
provisions of TIA ss.314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
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 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
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. LIMITATION 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 $1,000,000 or more, such determination shall 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 $5,000,000 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 reasonable and customary directors'
fees, indemnification and similar arrangements and payments thereunder, or to
any obligations of the Company under the Financial Monitoring and Oversight
Agreements, the Tax Sharing Agreement or any employment agreement with any
officer of the Company (provided that each amendment of any of the foregoing
agreements shall be subject to the limitations of this Section 4.11).
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
Neither the Company nor any of its Subsidiaries shall,
directly, or indirectly, create, incur, assume, guarantee, acquire or become
liable for, contingently or otherwise, (collectively "INCUR"), any Indebtedness
other than Permitted Indebtedness. Notwithstanding the foregoing limitations,
the Company or any Subsidiary may incur Indebtedness if on the date of the
incurrence of such Indebtedness, after giving effect to the incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the
Company's Leverage Ratio is less than 7.0 to 1.
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SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, create or otherwise cause or permit to exist or become
effective 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,
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 permitted under the 9-3/8%
Notes Indenture, the 8-3/4% Notes Indenture, the 10-1/2% Notes Indenture, the
8-1/8% Notes Indenture and the 9% Notes Indenture existing on the Issue Date
(including the Credit Agreement and the Senior Credit Facility, as applicable),
as such agreements are from time to time in effect; provided, however, that any
amendments or modifications of such agreements which 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) 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 or any
other agreement evidencing Indebtedness permitted under this Indenture;
provided, however, that the provisions relating to such encumbrance or
restriction contained in any such refinancing, replacement or substitution
agreement or any such other agreement are not less favorable to the Company in
all material respects 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), or (7)
restrictions on the transfer of assets subject to any Lien permitted under this
Indenture imposed by the holder of such Lien.
SECTION 4.14. [INTENTIONALLY OMITTED]
SECTION 4.15. CHANGE OF CONTROL.
(a) In the event of a Change of Control, the Company shall be
obligated to make an offer to repurchase all outstanding 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 accrued
interest, if any, to the date of repurchase.
(b) Within 30 days following the date upon which a Change of
Control occurs (the "CHANGE OF CONTROL DATE"), the Company shall send, by first
class mail, a notice to each Holder of Securities, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Change of Control Offer. Such
notice shall state:
(1) that the Change of Control Offer is being made
pursuant to this Section 4.15 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");
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(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 accrue interest
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, properly endorsed for
transfer together with such customary documents as the
Company reasonably may request, to the Paying Agent 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, a
telegram, 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 by the Trustee to the Company.
(d) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the purchase of the Securities pursuant to a Change of Control Offer. To
the extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Change of Control Offer, the Company shall comply with
the provisions of such rule and be deemed not to have breached its obligations
relating to such Change of Control Offer by virtue thereof.
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SECTION 4.16. 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 $2,500,000, 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 the Subsidiary, as the case may be,
from such Asset Sale is 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 the capital stock) for all or substantially all the assets (including by way
of the transfer of the 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 the
principal of the Senior Credit Facility or other Indebtedness ranking equal in
right of payment to the Senior Credit Facility (but not including the Notes)
(and, to the extent repayment of any such 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 (pro rata among the holders of Securities tendered to the Company
for purchase, based upon the aggregate principal amount of the Securities so
tendered) tendered to the Company for purchase at a price equal to 100% of the
principal amount thereof, plus accrued interest thereon 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 if at any time any
non-cash consideration received by the Company or any Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted
into or sold or otherwise disposed of for cash, then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Cash Proceeds thereof shall be applied in accordance with clause (iii) above;
provided, further that the Company may defer making a Net Proceeds Offer until
the aggregate Net Cash Proceeds from Asset Sales to be applied equals or
exceeds $5,000,000. In the event of a transaction effected in accordance with
Section 5.01 which involves less than all of the property or assets of the
Company, only property or assets not included in such transaction shall be
deemed to have been transferred in an Asset Sale.
(b) Subject to the deferral right set forth in the final
proviso of paragraph (a), each notice of a Net Proceeds Offer pursuant to this
Section 4.16 shall be mailed, by first class mail, by the Company to Holders of
the Securities as shown on the applicable register of Holders of the 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 (B)
above, within 180 days following the termination of such agreement but in no
event later than 360 days after the relevant Asset Sale, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Securities pursuant to the Net Proceeds Offer and
shall state the following terms:
(1) that the Net Proceeds Offer is being made
pursuant to Section 4.16 and that Holders of Securities may
elect to tender their Securities in denominations of less
than $1,000 and that all Securities validly tendered will be
accepted for payment; provided, however, that if the
aggregate principal amount of Securities tendered in a Net
Proceeds Offer plus accrued interest at the expiration of
such offer exceeds the aggregate amount of the Net Proceeds
Offer, the Company shall select the Securities to be
purchased on a pro rata basis (based upon the principal
amount tendered);
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(2) the purchase price (including the amount of
accrued interest) 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 "PROCEEDS PURCHASE 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 Net Proceeds Offer shall cease to accrue interest
after the Proceeds Purchase Date;
(5) that Holders electing to have a Security
purchased pursuant to a Net Proceeds Offer will be required
to surrender the Security, properly endorsed for transfer
together with such other customary documents as the Company
reasonably may request, to the Paying Agent at the address
specified in the notice prior to the close of business on the
Business Day prior to the Proceeds Purchase 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 Proceeds Purchase Date, a
telegram, 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 Net Proceeds Offer.
(c) On or before the Proceeds Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof validly tendered
pursuant to the Net Proceeds 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 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 payment of the purchase price for the Securities
accepted for purchase, the Trustee shall return the Securities purchased to the
Company for cancellation. Any Securities not so accepted shall be promptly
mailed by the Company to the Holder thereof.
(d) If the aggregate principal amount of Securities validly
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 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.
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(e) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with their purchase of Securities pursuant to a Net Proceeds Offer. To the
extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Net Proceeds Offer, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations
relating to such Net Proceeds Offer by virtue thereof.
SECTION 4.17. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES.
The Company shall not permit any of its Subsidiaries to issue
any Preferred Stock (other than to the Company or to a Wholly-Owned Subsidiary
of the Company) or permit any Person (other than the Company or a Wholly-Owned
Subsidiary of the Company) to own any Preferred Stock of a Subsidiary (other
than Acquired Preferred Stock; provided that at the time the issuer of such
Acquired Preferred Stock becomes a Subsidiary of the Company or merges with the
Company or any of its Subsidiaries, and after giving effect to such
transaction, the Company shall be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) in compliance with Section
4.12).
SECTION 4.18. LIMITATION ON LIENS.
Neither the Company nor any of its Subsidiaries shall create,
incur, assume or suffer to exist any Liens upon any of their respective assets,
except for (a) Permitted Liens, (b) Liens to secure the Senior Credit Facility
or any other Indebtedness ranking equal in right of payment to the Senior
Credit Facility or guarantees of the foregoing permitted under this Indenture,
(c) Liens permitted under the 9-3/8% Notes Indenture, the 8-3/4% Notes
Indenture, the 10-1/2% Notes Indenture, the 8-1/8% Notes Indenture and the 9%
Notes Indenture existing on the Issue Date, (d) Liens in favor of the Trustee,
and (e) any Lien to secure the replacement, refunding, extension or renewal, in
whole or in part, of any Indebtedness described in the foregoing clauses;
provided that, to the extent any such clause limits the amount secured or the
asset subject to such Liens, no extension or renewal will increase the assets
subject to such Liens or the amount secured thereby beyond the assets or
amounts set forth in such clauses.
SECTION 4.19. GUARANTEES OF CERTAIN INDEBTEDNESS.
The Company shall not permit any of its Subsidiaries,
directly or indirectly, to incur, guarantee or secure through the granting of
Liens, the payment of any Indebtedness under the Senior Credit Facility or any
refunding or refinancing thereof, in each case, unless such Subsidiary, the
Company and the Trustee execute and deliver a supplemental indenture pursuant
to which such Subsidiary becomes a Guarantor of the Securities and which
evidences such Subsidiary's Guarantee of the Securities, such Guarantee to be a
senior unsecured obligation of such Subsidiary. Neither the Company nor any
such Guarantor shall be required to make a notation on the Securities or its
Guarantee to reflect any such subsequent Guarantee. Nothing in this Section
4.19 shall be construed to permit any Subsidiary of the Company to incur
Indebtedness otherwise prohibited by Section 4.12.
SECTION 4.20. LIMITATION ON SALE AND LEASEBACK TRANSACTION.
Neither the Company nor any of its Subsidiaries shall enter
into any Sale and Leaseback Transaction, except that the Company or any
Subsidiary may enter into a Sale and Leaseback Transaction if, immediately
prior thereto, and after giving effect to such Sale and Leaseback Transaction
(the Indebtedness thereunder being equivalent to the Attributable Value
thereof) the Company could incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with Section 4.12.
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SECTION 4.21. LIMITATION ON LINE OF BUSINESS.
For so long as any Securities are outstanding, the Company
and its Subsidiaries shall engage solely in the ownership and operation of
broadcast businesses or businesses related thereto, including, without
limitation, media representation, sale of advertising and such other activities
as are incidental or similar or related thereto.
SECTION 4.22. LIMITATION ON ASSET SWAPS.
Neither the Company nor any of its Subsidiaries shall engage
in any Asset Swaps, unless: (i) at the time of entering into the agreement to
swap assets and immediately after giving effect to the proposed Asset Swap, no
Default or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof; (ii) the Company would, after giving pro forma
effect to the proposed Asset Swap, have been permitted to incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) in compliance
with Section 4.12; (iii) the respective fair market values of the assets being
purchased and sold by the Company or any of its Subsidiaries (as determined in
good faith by the management of the Company or, if such Asset Swap includes
consideration in excess of $2,500,000 by the Board of Directors, as evidenced
by a Board Resolution delivered to the Trustee) are substantially the same at
the time of entering into the agreement to swap assets; and (iv) at the time of
the consummation of the proposed Asset Swap, the percentage of any decline in
the fair market value (determined as aforesaid) of the asset or assets being
acquired by the Company and its Subsidiaries shall not be significantly greater
than the percentage of any decline in the fair market value (determined as
aforesaid) of the assets being disposed of by the Company, calculated from the
time the agreement to swap assets was entered into; provided, however, that
this Section 4.22 shall not apply to any of the Pending Transactions.
ARTICLE 5.
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
(a) The Company shall 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 shall be the survivor of
such merger or consolidation or (B) the surviving or
transferee Person is a corporation, partnership or trust
organized and existing under the laws of the United States,
any State thereof or the District of Columbia and such
surviving or transferee Person shall expressly assume by
supplemental indenture all the obligations of the Company
under the Securities and this Indenture;
(2) immediately after giving effect to such
transaction and the use of the proceeds therefrom (on a pro
forma basis, including any Indebtedness incurred or
anticipated to be incurred in connection with such
transaction), the Company or the surviving or transferee
Person is able to incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) in compliance with
Section 4.12;
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(3) immediately after giving effect to such
transaction (including any Indebtedness incurred or
anticipated to be incurred in connection with the
transaction) no Default or Event of Default shall have
occurred and be continuing; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating
that such consolidation, merger or transfer complies with
this Indenture, that the surviving or transferee Person
agrees by supplemental indenture to be bound hereby, 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, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
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 6.
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "EVENT OF DEFAULT" occurs if:
(1) the Company defaults in the payment of interest on the
Securities when the same becomes due and payable and the Default continues for
a period of 30 days; or
(2) the Company defaults in the payment of the principal of
any Securities when the same becomes due and payable, at maturity, upon
redemption or otherwise; or
(3) the Company fails to observe or perform any other
covenant or agreement contained in the Securities or this Indenture and the
Default continues for a period of 30 days after written notice thereof
specifying such Default has been given to the Company by the Trustee or the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities; or
(4) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of
its Subsidiaries), whether such Indebtedness or guarantee exists on the date
hereof or
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is created after the date hereof, which Default (a) is caused by a failure to
pay principal of or premium or interest on such Indebtedness prior to the
expiration of any grace period provided in such Indebtedness (a "Payment
Default") or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness under which
there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $5,000,000 or more; or
(5) one or more judgments in an aggregate amount in excess of
$5,000,000 (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 judgments remain undischarged or unstayed for
a period of 60 days after such judgment or judgments become final and
non-appealable; or
(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,
by notice to the Company, or the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding may, by written notice to the Company
and the Trustee, and the Trustee shall, upon the request of such Holders,
declare the aggregate principal amount of the Securities outstanding, together
with accrued but unpaid interest, if any, on all Securities 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 shall become immediately due and payable.
If an Event of Default specified in Section 6.01(6) or (7) occurs and is
continuing with respect to the Company, all unpaid principal and accrued
interest on the Securities then outstanding 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. 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 or interest on the Securities which
have 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 or interest 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 principal of or interest on any Security as specified
in clauses (1) and (2) of Section 6.01.
SECTION 6.05. CONTROL BY MAJORITY.
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, which 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:
(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 reasonably satisfactory
to the Trustee indemnity or security against any loss, liability or expense to
be incurred in compliance with such request;
(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
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(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 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 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 for amounts due under Sections 6.09 and
7.07;
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Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to Holders for their
collection costs;
Third: to Holders for amounts due and unpaid on the Securities
for principal 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 and expenses, 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 7.
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:
(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 (but need not
confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
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(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 or
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 indemnity against such risk or of such funds or adequate ability is
not reasonably assured to it.
(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 in writing 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 willful
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 TRUSTEES.
Subject to Section 7.01:
(a) The Trustee may conclusively 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 13.04 and 13.05. 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 which it reasonably believes to be
authorized or within its rights or powers conferred upon it by this Indenture.
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(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 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 at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation.
(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 of its selection 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 the recitals
contained herein and in the Securities shall be taken as the statements of the
Company and the Trustee shall not be responsible for any statement of the
Company in this Indenture or the Securities other than the Trustee's
certificate of authentication.
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, as their name and address appears in the security register,
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, 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(l) or 6.01(2)
or (ii) any Default or Event of Default of which a Trust Officer shall have
received written notification and such notice references the Securities and the
Indenture or obtained actual knowledge.
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SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 of each year beginning with
May 15, 1999, the Trustee shall, to the extent that any of the events described
in TIA ss.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 ss.313(a). The Trustee also shall comply with TIA ss.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 SEC 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 ss.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 in writing by the Company and 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 and all loss, liability, damage, claim 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 for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee 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.
The provisions of this Section 7.07 shall survive termination
of this Indenture.
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SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company. 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. 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;
(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 (at the
expense of the Company), the Company or the Holders of at least 10% in
principal amount of the outstanding Securities may petition any 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 ss.ss.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
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$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 ss.ss.310(a)(2). The
Trustee shall comply with TIA ss.310(b); provided, however, that there shall be
excluded from the operation of TIA ss.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 ss.310(b)(1) are met. The provisions of TIA ss.310
shall apply to the Company and any other obligor of the Securities.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with TIA ss.311(a), excluding any
creditor relationship listed in TIA ss.311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss.311(a) to the extent indicated therein.
The provisions of TIA ss.311 shall apply to the Company and any other obligor
of the Securities.
ARTICLE 8.
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 (except for certain obligations of the Company to
register the transfer or exchange of such Securities, replace stolen, lost or
mutilated Securities, maintain paying agencies and hold moneys for payment in
trust) 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 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 which, through the payment of interest thereon and
principal in respect thereof in accordance with their terms, will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay all the principal of and interest on the Securities on the
dates such installments of interest or principal 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(l) shall cause the Trustee
to have a conflicting interest as defined in and for purposes of the TIA;
provided, further, that from and after the time of deposit, the Funds deposited
shall not be subject to the rights of holders of Senior Indebtedness pursuant
to the provisions of Article Ten; 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;
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(2) The Company shall have delivered to the Trustee an
Opinion of Counsel or a private letter ruling issued to the Company by the IRS
to the effect that the Holders of the Securities will not recognize income,
gain or loss for federal income tax purposes as a result of the deposit and
related defeasance and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would have been the case if
such option had not been exercised and, in the case of an Opinion of Counsel
furnished in connection with a Discharge pursuant to the foregoing, accompanied
by a private letter ruling issued to the Company by the IRS to such effect;
(3) 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;
(4) 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;
(5) The Company shall have paid or duly provided for payment
of all amounts then due to the Trustee pursuant to Section 7.07;
(6) 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 Senior Credit
Facility) to which the Company or any of its Subsidiaries is a party or by
which it or its property is bound; 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 2 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.
"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.
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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 and accrued and
unpaid interest on the Securities. The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 8.01 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding
Securities.
SECTION 8.04. REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall promptly pay to the
Company, upon the Company's written request, any Funds held by them for the
payment of principal 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.
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 on or principal
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 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDER.
The Company, when authorized by a Board Resolution, and the
Trustee, together, may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder:
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(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article Five;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities; or
(4) to make any other change that does not adversely affect
in any material respect the rights of any Securityholders hereunder;
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 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;
(5) make any change in provisions of this Indenture
protecting the right of each Holder of a Security to receive payment of
principal of 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 4.15 or 4.16, amend, modify or change the obligation of
the Company to consummate a Change of Control Offer or a Net Proceeds 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.
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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. If a record date is fixed, then
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,
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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.
ARTICLE 10.
[INTENTIONALLY OMITTED]
ARTICLE 11.
GUARANTEES OF THE SECURITIES
SECTION 11.01. GUARANTEES.
Subject to the provisions of this Article Eleven, each
Guarantor hereby jointly and severally unconditionally guarantees to each
Holder of a Security authenticated and made available for delivery by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities or the
obligations of the Company or any other Guarantors to the Holders or the
Trustee hereunder, that: (a) the principal of and interest on the Securities
will be duly and punctually paid in full when due, whether at maturity, by
acceleration or otherwise, and interest on the overdue principal and (to the
extent permitted by law) interest, if any, on the Securities and all other
Obligations on the Securities will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Securities or any of such other
Obligations on the Securities, the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at final stated maturity, by acceleration or otherwise. Failing payment when
due of any amount so guaranteed, for whatever reason, each Guarantor will be
obligated to pay the same immediately. An Event of Default under this Indenture
or the Securities shall constitute an event of default under the Guarantees,
and shall entitle the Holders of Securities to accelerate the obligations of
the Guarantors hereunder in the same manner and to the same extent as the
Obligations of the Company on the Securities.
Each of the Guarantors hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularly or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Company, any action to
enforce the same, whether or not a Guarantee is affixed to any particular
Security, or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each of the Guarantors hereby
waives the benefit of diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and the Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or to any
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or such Guarantor, any amount paid by the
Company or such Guarantor to the Trustee or such Holder, the Guarantees, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Securities and the Trustee, on the other hand, (a) subject to this
Article Eleven, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Section 6.02 for the purposes of the Guarantees,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Section 6.02, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of the Guarantees.
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The Guarantees shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Company's assets, and shall,
to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Securities are, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee on the Securities,
whether as a "voidable preference," "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Securities shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
No stockholder, officer, director, employer or incorporator,
past, present or future, of any Guarantor, as such, shall have any personal
liability under the Guarantees by reason of his, her or its status as such
stockholder, officer, director, employer or incorporator.
The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantees.
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that in no event
shall any Guarantor's obligations under its Guarantee be subject to avoidance
under any applicable fraudulent conveyance or similar law of any relevant
jurisdiction. Therefore, in the event that the Guarantees would, but for this
sentence, be subject to avoidance, then the liability of the Guarantors under
the Guarantees shall be reduced to the extent necessary such that such
Guarantees shall not be subject to avoidance under the applicable fraudulent
conveyance or similar law. Subject to the preceding limitation on liability,
the Guarantee of each Guarantor constitutes a guarantee of payment in full when
due and not merely a guarantee of collectability.
SECTION 11.02. EXECUTION AND DELIVERY OF THE GUARANTEES.
To further evidence the Guarantees set forth in Section
11.01, each Guarantor hereby agrees that a notation of such Guarantees,
substantially in the form included in Exhibit A-1 and Exhibit A-2 hereto, shall
be endorsed on each Security authenticated and made available for delivery by
the Trustee. The validity and enforceability of any Guarantee shall not be
affected by the fact that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this
Indenture or a Security no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, such Guarantor's
Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of any
Guarantee set forth in this Indenture on behalf of the Guarantor.
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SECTION 11.03. ADDITIONAL GUARANTORS.
Any Person may become a Guarantor by executing and delivering
to the Trustee (a) a supplemental indenture, in form and substance satisfactory
to the Trustee, which subjects such Person to the provisions of this Indenture
as a Guarantor, and (b) an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized and executed by such Person and
constitutes the legal, valid, binding and enforceable obligation of such Person
(subject to such customary exceptions concerning fraudulent conveyance laws,
creditors' rights and equitable principles as may be acceptable to the Trustee
in its discretion)
SECTION 11.04. LIMITATION OF GUARANTORS' LIABILITY.
The obligations of each Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including, without limitation, any guarantees
under the Senior Credit Facility) and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
11.06, result in the obligations of such Guarantor under the Guarantees not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under the
Guarantees shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
SECTION 11.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into the Company or another Guarantor or shall prevent any sale or conveyance
of the property of a Guarantor, as an entirety or substantially as an entirety,
to the Company or another Guarantor. Upon any such consolidation, merger, sale
or conveyance, the Guarantee given by such Guarantor shall no longer have any
force or effect.
(b) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or
into a Person (provided such Person is a corporation, partnership or trust)
other than the Company or another Guarantor or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to any such Person (whether or not an Affiliate of the Guarantor).
Upon the sale or disposition of a Guarantor (or all or substantially all of its
assets) to a Person which is not a Subsidiary of the Company, which is
otherwise in compliance with this Indenture (including Section 4.16), such
Guarantor shall be deemed released from all its obligations under this
Indenture and its Guarantee and such Guarantee shall terminate; provided,
however, that any such termination shall occur only to the extent that all
obligations of such Guarantor under the Senior Credit Facility, and all its
guarantees of, and under all of its pledges of assets or other security
interests which secure, Indebtedness of the Company shall also terminate upon
such release, sale or transfer.
(c) The Trustee shall, at the Company's expense, deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate certifying as to the compliance
with this Section 11.05. Any Guarantor not so released remains liable for the
full amount of principal and interest on the Securities as provided in this
Article Eleven.
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SECTION 11.06. CONTRIBUTION.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter alia, that in the event any payment
or distribution is made by any Guarantor (a "FUNDING GUARANTOR") under the
Guarantees, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantees.
SECTION 11.07. WAIVER OF SUBROGATION.
Each Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise
from the existence, payment, performance or enforcement of such Guarantor's
obligations under the Guarantees and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration or
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Securities, and shall forthwith be paid to
the Trustee for the benefit of such Holders to be credited and applied upon the
Securities, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct or indirect
benefits from the financing arrangements contemplated by this Indenture and
that the waiver set forth in this Section 11.07 is knowingly made in
contemplation of such benefits.
ARTICLE 12.
[INTENTIONALLY OMITTED]
ARTICLE 13.
MISCELLANEOUS
SECTION 13.01. 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 13.02. 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 telecopier or registered or certified mail, postage prepaid,
return receipt requested, addressed as follows:
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71
if to the Company:
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
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 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.
SECTION 13.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss.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 ss.312(c).
SECTION 13.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Except with respect to the issuance of the series of
Securities on the date of this Indenture, 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, of
any, provided for in this Indenture relating to the proposed action have been
complied with.
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72
SECTION 13.05. STATEMENTS REQUIRED IN CERTIFICATE.
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 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 13.06. 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 13.07. 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, 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 13.08. 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 13.09. 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 13.10. 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 and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
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73
SECTION 13.11. 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 13.12. 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 13.13. 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.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the date first written above.
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The Company
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By: /s/ XXXX XXXXXXXX
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President and Assistant Secretary
The Guarantors:
On Behalf of the Subsidiary Guarantors
Listed on Schedule I here
By: /s/ XXXX XXXXXXXX
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President and Assistant Secretary
The Trustee:
THE BANK OF NEW YORK
By: /s/ XXXX XXXXX
-----------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
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SCHEDULE I
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(ALL SUBSIDIARIES ARE DELAWARE CORPORATIONS EXCEPT AS EXPRESSLY INDICATED)
1. Chancellor Media Corporation of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Xxxxxx Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
X-0
00
00. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Xxxxxx Media (a California limited partnership)
47. Xxxxxxx Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Xxxxxx & XxxXxxxxxx, Inc. (a California corporation)
51. Xxxx Media Corporation
52. Xxxx Communications, Inc.
53. Xxxx Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Xxxxxxxx Radio Sales, Inc.
56. Xxxxxxx Radio Sales, Inc.
57. Seltel Inc.
58. Xxxx Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
64. Revolution Outdoor Advertising, Inc.
65. Xxxxxx Development Corporation
66. Xxxxxxx Development Company
S-2
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EXHIBIT A-1
(Face of Security)
===============================================================================
CUSIP:
-----------
8% [Series A] [Series B] Senior Notes due 2008
No.: $
-----------
Chancellor Media Corporation of Los Angeles
promises to pay to
-------------------------------------------------------------
or registered assigns,
the principal sum of
-----------------------------------------------------------
Dollars on , 2008.
----------------
Interest Payment Dates: , and
-------------
Record Dates: , and
------------- ------------------
DATED: , 199_
------------
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
BY:
----------------------------------
Name:
Title:
This is one of the [Global]
Securities referred to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
By:
--------------------------
Authorized Signatory
===============================================================================
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(REVERSE OF SECURITY)
8% SENIOR NOTES DUE 2008
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
1. Interest. CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a
Delaware corporation (the "COMPANY"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. Interest on the
Securities will accrue from the most recent date on which interest has been
paid or, if no interest has been paid, from November 17, 1998. The Company will
pay interest semi-annually in arrears on each Interest Payment Date, commencing
May 1, 1999. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
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 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 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 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 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, The Bank of New
York (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 and Guarantees. The Company issued the
Securities under an indenture, dated as of November 17, 1998 (the "INDENTURE"),
among the Company, the Guarantors and the Trustee. This Security is one of a
duly authorized issue of Securities of the Company designated as its 8% Senior
Notes due 2008 (the "SECURITIES"), limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $750,000,000, 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. 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. Payment on each Security is
guaranteed on a senior basis, jointly and severally, by the Guarantors pursuant
to Article Eleven of the Indenture.
5. [Intentionally Omitted.]
6. Optional Redemption. (a) The Securities will be
redeemable, at the Company's option, in whole at any time or in part from time
to time, upon not less than 30 nor more than 60 days prior notice mailed by
first class mail to each holder's registered address, at a redemption price
equal to 100% of the principal amount thereof plus the Applicable Premium (as
defined below) as of, and accrued and unpaid interest, if any, to the date of
redemption (the "REDEMPTION DATE") (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant interest
payment date in respect of then outstanding Securities).
A1-2
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"APPLICABLE PREMIUM" means, with respect to a Security at any
Redemption Date, (a) the present value of all remaining required interest and
principal payments due on such Security assuming a Redemption Date of November
1, 2008, computed using a discount rate equal to the Treasury Rate (as defined
below) plus 50 basis points minus (b) the then outstanding principal amount of
such Security minus (c) accrued interest paid on the Redemption Date.
"TREASURY RATE" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) ("STATISTICAL RELEASE") which has become publicly available at least
two business days prior to the Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption Date to November 1, 2008;
provided, however, that if the period from the Redemption Date to November 1,
2008 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 Redemption Date to
November 1, 2008 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.
(b) In addition, on or prior to November 1, 2001,
the Company may, at its option, use the net cash proceeds of one or more Public
Equity Offerings to redeem the Securities, in part, at a redemption price of
108.0% of the principal amount thereof, plus accrued and unpaid interest
thereon to the date of redemption; provided, however, that after any such
redemption the aggregate principal amount of the Securities outstanding must
equal at least 75% of the aggregate principal amount of the Securities
originally issued (that is, $562.5 million).
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. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
Offering and effect such redemption not later than 90 days after the
consummation of such Public Equity Offering. 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 of the then
outstanding Securities pursuant to a Change of Control Offer at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase. Holders of Securities which are
the subject of such an offer to repurchase shall receive an offer to repurchase
and may elect to have such Securities repurchased in accordance with the
provisions of the Indenture pursuant to and in accordance with the terms of the
Indenture.
9. Limitation on Disposition of Assets. Under certain
circumstances, the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
date of repurchase.
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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 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 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 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, make payments in respect of its Capital
Stock or certain Indebtedness, 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
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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. The Trustee under the Indenture, in its
individual or any other capacity, 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 to consummate an exchange offer
pursuant to which, subject to the terms and conditions of the Registration
Rights Agreement, the Holder of this Security shall have the right to exchange
this Security for Securities of a separate series issued under the Indenture
(or a trust indenture substantially identical to the Indenture in accordance
with the terms of the Registration Rights Agreement) which have been registered
under the Securities Act, in like principal amount and having identical terms
as this Security. The Holders of the Securities shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
25. Indenture. 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.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture, which has the text
of this Security in larger type. Requests may be made to: CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
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GUARANTEE
The Guarantors (as defined in the Indenture referred to in
the Security upon which this notation is endorsed and each hereinafter referred
to as a "GUARANTOR," which term includes any successor person under the
Indenture) have unconditionally guaranteed on a senior basis (such guarantee by
each Guarantor being referred to herein as the "GUARANTEE") (i) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
the Guarantees are noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
GUARANTORS:
On Behalf of the Subsidiary Guarantors Listed
on Exhibit A hereto
By:
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
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Exhibit A
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(ALL SUBSIDIARIES ARE DELAWARE CORPORATIONS EXCEPT AS EXPRESSLY INDICATED)
1. Chancellor Media Corporation of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Xxxxxx Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
A1-7
84
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Xxxxxx Media (a California limited partnership)
47. Xxxxxxx Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Xxxxxx & XxxXxxxxxx, Inc. (a California corporation)
51. Xxxx Media Corporation
52. Xxxx Communications, Inc.
53. Xxxx Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Xxxxxxxx Radio Sales, Inc.
56. Xxxxxxx Radio Sales, Inc.
57. Seltel Inc.
58. Xxxx Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
64. Revolution Outdoor Advertising, Inc.
65. Xxxxxx Development Corporation
66. Xxxxxxx Development Company
A1-8
85
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
-------------------------------------------------------------------------------
Date:
Your Signature:
-----------------------
(Sign exactly as your name appears on
the face of this Security)
SIGNATURE GUARANTEE.
------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A1-9
86
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Security
purchased by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, state the amount you elect to have purchased: $________
Date: Your Signature:
----------------- ----------------------------
(Sign exactly as your name
appears on the Note)
Tax Identification No:
----------------------
SIGNATURE GUARANTEE.
------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A1-10
87
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY1/
The following exchanges of a part of this Global Security for
an interest in another Global Security or for a Definitive Security, or
exchanges of a part of another Global Security or Definitive Security for an
interest in this Global Security, have been made:
Amount of
decrease in Amount of Principal Amount of Signature of
Principal increase in of this authorized
Amount of Principal Global Security officer of
this Global Amount of following such Trustee or
Date of Exchange Security this Global Security decrease (or increase) Custodian
------------------- ----------- -------------------- ---------------------- ------------
-----------------------
11 This should be included only if the Security is issued in global form.
A1-11
88
EXHIBIT A-2
(Face of Regulation S Temporary Global Security)
===============================================================================
CUSIP:
------------
8% [Series A] [Series B] Senior Notes due 2008
No. $
----- ------------
Chancellor Media Corporation of Los Angeles
promises to pay to
-------------------------------------------------------------
or registered assigns,
the principal sum of
-----------------------------------------------------------
Dollars on , 2008.
----------------
Interest Payment Dates: , and
------------- -------------
Record Dates: , and
-------------- -------------
DATED: , 199
--------------------
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By:
---------------------------------
Name:
Title:
This is one of the [Global]
Securities referred to in the
within-mentioned Indenture:
The Bank of New York,
as Trustee
By:
------------------------
Authorized Signatory
===============================================================================
A2-1
89
(REVERSE OF REGULATION S TEMPORARY GLOBAL SECURITY)
8% SENIOR NOTES DUE 2008
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL
SECURITY, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
CERTIFICATED SECURITIES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN).
THIS GLOBAL SECURITY IS HELD BY THE DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS SECURITY) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL SECURITY
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
SECURITY MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE ACT) (B) IT IS AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a) (1), (2), (3) OR (7) UNDER THE ACT) OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 000X XXXXX XXX XXX, (X) XXXXXX XXX
XXXXXX XXXXXX TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS HAD FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRANSFER
AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRANSFER AGENT), (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRANSFER,
FURNISH TO THE TRANSFER AGENT AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED
HEREIN, THE TERMS "OFF-SHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE ACT.
A2-2
90
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES, a Delaware
corporation (the "COMPANY"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. Interest on the Securities
will accrue from the most recent date on which interest has been paid or, if no
interest has been paid, from November 17, 1998. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing May 1, 1999.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
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 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 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 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 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, The Bank of New
York (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 and Guaranty. The Company issued the Securities
under an Indenture, dated as of November 17, 1998 (the "INDENTURE"), among the
Company, the Guarantors and the Trustee. This Security is one of a duly
authorized issue of Securities of the Company designated as its 8% Senior Notes
due 2008 (the "SECURITIES"), limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $750,000,000, 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. 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. Payment on each Security is
guaranteed on a senior basis, jointly and severally, by the Guarantors pursuant
to Article Eleven of the Indenture.
5. [Intentionally Omitted.]
6. Optional Redemption. (a) The Securities will be
redeemable, at the Company's option, in whole at any time or in part from time
to time, upon not less than 30 nor more than 60 days prior notice mailed by
first class mail to each holder's registered address, at a redemption price
equal to 100% of the principal amount thereof plus the Applicable Premium (as
defined below) as of, and accrued and unpaid interest, if any, to the date of
redemption (the "REDEMPTION DATE") (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant interest
payment date in respect of then outstanding securities).
A2-3
91
"APPLICABLE PREMIUM" means, with respect to a Security at any
Redemption Date, (a) the present value of all remaining required interest and
principal payments due on such Security assuming a Redemption Date of November
1, 2008, computed using a discount rate equal to the Treasury Rate (as defined
below) plus 50 basis points minus (b) the then outstanding principal amount of
such Security minus (c) accrued interest paid on the Redemption Date.
"TREASURY RATE" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) ("STATISTICAL RELEASE") which has become publicly available at least
two business days prior to the Redemption Date (or, if such Statistical Release
is no longer published, any publicly available source of similar market data))
most nearly equal to the period from the Redemption Date to November 1, 2008;
provided, however, that if the period from the Redemption Date to November 1,
2008 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 Redemption Date to
November 1, 2008 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.
(b) In addition, on or prior to November 1, 2001, the Company
may, at its option, use the net cash proceeds of one or more Public Equity
Offerings to redeem the Securities, in part, at a redemption price of 108.0% of
the principal amount thereof, plus accrued and unpaid interest thereon to the
date of redemption; provided, however, that after any such redemption the
aggregate principal amount of the Securities outstanding must equal at least
75% of the aggregate principal amount of the Securities originally issued (that
is, $562.5 million).
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. In
order to effect a redemption with the proceeds of a Public Equity Offering, the
Company shall send the redemption notice in the manner specified in the
Indenture not later than 30 days after the consummation of such Public Equity
Offering and effect such redemption within 90 days after the consummation of
such Public Equity Offering. 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 of the then
outstanding Securities pursuant to a Change of Control Offer at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase. Holders of Securities which are
the subject of such an offer to repurchase shall receive an offer to repurchase
and may elect to have such Securities repurchased in accordance with the
provisions of the Indenture pursuant to and in accordance with the terms of the
Indenture.
9. Limitation on Disposition of Assets. Under certain
circumstances, the Company is required to apply the net proceeds from Asset
Sales to offer to repurchase Securities at a price equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest to the
date of repurchase.
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.
A2-4
92
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 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 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 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, make payments in respect of its Capital
Stock or certain Indebtedness, 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 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.
A2-5
93
18. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, 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 Number. 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. Indenture. 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.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture, which has the text
of this Security in larger type. Requests may be made to: CHANCELLOR MEDIA
CORPORATION OF LOS ANGELES, 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
A2-6
94
GUARANTEE
The Guarantors (as defined in the Indenture referred to in
the Security upon which this notation is endorsed and each hereinafter referred
to as a "GUARANTOR," which term includes any successor person under the
Indenture) have unconditionally guaranteed on a senior basis (such guarantee by
each Guarantor being referred to herein as the "GUARANTEE") (i) the due and
punctual payment of the principal of and interest on the Securities, whether at
maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal and interest, if any, on the Securities, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms set forth in Article Ten of the Indenture and (ii) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such,
past, present or future, of any Guarantor shall have any liability under the
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
the Guarantees are noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
GUARANTORS:
On Behalf of the Subsidiary Guarantors
Listed on Exhibit A hereto
By:
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
A2-7
95
Exhibit A
CERTAIN SUBSIDIARIES OF
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
(ALL SUBSIDIARIES ARE DELAWARE CORPORATIONS EXCEPT AS EXPRESSLY INDICATED)
1. Chancellor Media Corporation of The Lone Star State
2. KZPS/KDGE License Corp.
3. Chancellor Media Corporation of California
4. KIOI License Corp.
5. Chancellor Media Corporation of Illinois
6. Chancellor Media Illinois License Corp.
7. Chancellor Media Corporation of Dade County
8. WVCG License Corp.
9. Chancellor Media Corporation of Massachusetts
10. Chancellor Media Pennsylvania License Corp.
11. Chancellor Media Corporation of Miami
12. WEDR License Corp.
13. Chancellor Media of Houston Limited Partnership
14. Chancellor Media Corporation of Houston
15. Chancellor Media Corporation of the Keystone State
16. Chancellor Media Corporation of New York
17. Chancellor Media Corporation of Charlotte
18. WIOQ License Corp.
19. Chancellor Media Corporation of Washington, D.C.
20. Chancellor Media Corporation of St. Louis
21. Chancellor Media Corporation of Michigan
22. Chancellor Media / WAXQ Inc.
23. WAXQ License Corp.
24. Chancellor Media / KCMG Inc.
25. Chancellor Media / Riverside Broadcasting Co., Inc.
26. WLTW License Corp.
27. Chancellor Media Corporation of the Capital City
28. Chancellor Media D.C. License Corp.
29. Chancellor Media Licensee Company
30. Chancellor Media/Trefoil Communications, Inc.
31. Chancellor Media/Shamrock Broadcasting, Inc.
32. Chancellor Media/Shamrock Radio Licenses, Inc.
33. Chancellor Media/Shamrock Broadcasting Licenses of Denver, Inc.
34. Chancellor Media/Shamrock Broadcasting of Texas, Inc (a Texas
corporation)
35. Chancellor Media/Shamrock Radio Licenses, LLC
36. Chancellor Media Outdoor Corporation
37. Chancellor Media Nevada Sign Corporation
38. Chancellor Media MW Sign Corporation
39. Chancellor Media Xxxxxx Corporation
40. Western Poster Service, Inc. (a Texas corporation)
41. The AMFM Radio Networks, Inc.
42. Chancellor Media Air Services Corporation
43. Chancellor Media Whiteco Outdoor Corporation
44. Chancellor Merger Corp.
A2-8
96
45. Broadcast Architecture, Inc. (a Massachusetts corporation)
46. Xxxxxx Media (a California corporation)
47. Xxxxxxx Company Incorporated (a Virginia corporation)
48. Nevada Outdoor Systems, Inc. (a Nevada corporation)
49. MW Sign Corp. (a California corporation)
50. Xxxxxx & XxxXxxxxxx, Inc. (a California limited partnership)
51. Xxxx Media Corporation
52. Xxxx Communications, Inc.
53. Xxxx Millennium Marketing, Inc.
54. Amcast Radio Sales, Inc.
55. Xxxxxxxx Radio Sales, Inc.
56. Xxxxxxx Radio Sales, Inc.
57. Seltel Inc.
58. Xxxx Cable Corporation
59. The National Payroll Company, Inc.
60. Chancellor Media Radio Licenses, LLC
61. KLOL License Limited Partnership
62. WTOP License Limited Partnership
63. Radio 100, L.L.C.
64. Revolution Outdoor Advertising, Inc.
65. Xxxxxx Development Corporation
66. Xxxxxxx Development Company
A2-9
97
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date:
---------------------
Your Signature:
----------------------
(Sign exactly as your name appears
on the face of this Security)
SIGNATURE GUARANTEE.
------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A2-10
98
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, check the box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of the Security
purchased by the Company pursuant to Section 4.15 or Section 4.16 of the
Indenture, state the amount you elect to have purchased: $________
Date: Your Signature:
----------------- ----------------------------
(Sign exactly as your name
appears on the Note)
Tax Identification No:
----------------------
SIGNATURE GUARANTEE.
------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
A2-11
99
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY1/
The following exchanges of a part of this Global Security for
an interest in another Global Security or for a Definitive Security, or
exchanges of a part of another Global Security or Definitive Security for an
interest in this Global Security, have been made:
Amount of
decrease in Amount of Principal Amount of Signature of
Principal increase in of this authorized
Amount of Principal Global Security officer of
this Global Amount of following such Trustee or
Date of Exchange Security this Global Security decrease (or increase) Custodian
------------------- ----------- -------------------- ---------------------- ------------
-----------------------
33 This should be included only if the Security is issued in global form.
A2-12
100
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Chancellor Media Corporation of Los Angeles
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee Administration
Re: 8% Series __ Senior Notes due 2008
Reference is hereby made to the Indenture, dated as of
November 17, 1998 (the "INDENTURE"), among Chancellor Media Corporation of Los
Angeles, as issuer (the "COMPANY"), the guarantors named therein and The Bank
of New York, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
______________, (the "TRANSFEROR") owns and proposes to
transfer the Security[ies] or interest in such Security[ies] specified in Annex
A hereto, in the principal amount of $___________ in such Security[ies] or
interests (the "TRANSFER"), to __________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that it has advised the transferee of the transfer
restrictions applicable to the Security[ies] and:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE 144A GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO RULE 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "SECURITIES ACT"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Security is being transferred to a Person that the
Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Security for its own account, or for one or more
accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Security will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Security and/or the Definitive Security and
in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
THE TEMPORARY REGULATION S GLOBAL SECURITY, THE REGULATION S GLOBAL SECURITY OR
A DEFINITIVE SECURITY PURSUANT TO REGULATION S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities
Act and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a person in the United States and (x) at the time
the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf
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reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither such Transferor nor any
Person acting on its behalf knows that the transaction was prearranged with a
buyer in the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an initial purchaser). Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Security, the Temporary Regulation S Global Security
and/or the Definitive Security and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE GLOBAL SECURITY OR A DEFINITIVE SECURITY PURSUANT TO
ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Securities and
Restricted Definitive Securities and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) [ ] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;
or
(d) [ ] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities
Act and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Security or Restricted Definitive
Securities and the requirements of the exemption claimed, which certification
is supported by (1) a certificate executed by the Transferee in the form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Securities at the time of transfer of less than $250,000,
an Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act. Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Global Security and/or the Definitive Securities and in the Indenture and
the Securities Act.
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4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN
AN UNRESTRICTED GLOBAL SECURITY OR OF AN UNRESTRICTED DEFINITIVE SECURITY.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the Securities Act and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any state of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities, on Restricted Definitive Securities and in
the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i)
The Transfer is being effected pursuant to and in accordance with Rule 903 or
Rule 904 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Security will no longer be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Securities, on Restricted Definitive
Securities and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Security will not be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Securities or Restricted Definitive Securities and in the
Indenture.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
--------------------------------------------
[Insert Name of Transferor]
By:
-----------------------------------------
Name:
Title:
Dated: ,
------------ -----
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP ), or
(ii) [ ] Regulation S Global Security (CUSIP ), or
(b) [ ] a Restricted Definitive Security.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Security (CUSIP ), or
(ii) [ ] Regulation S Global Security (CUSIP ), or
(iii) [ ] Unrestricted Global Security (CUSIP ); or
(b) [ ] a Restricted Definitive Security; or
(c) [ ] an Unrestricted Definitive Security,
in accordance with the terms of the Indenture.
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EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Chancellor Media Corporation of Los Angeles
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee Administration
Re: 8% Series Senior Notes due 2008
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of
November 17, 1998 (the "INDENTURE"), among Chancellor Media Corporation of Los
Angeles, as issuer (the "COMPANY"), the guarantors named therein and The Bank
of New York, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
____________, (the "OWNER") owns and proposes to exchange the
Security[ies] or interest in such Security[ies] specified herein, in the
principal amount of $____________ in such Security[ies] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL SECURITY FOR UNRESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN AN UNRESTRICTED GLOBAL SECURITY
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. In connection with the Exchange of the Owner's beneficial interest in
a Restricted Global Security for a beneficial interest in an Unrestricted
Global Security in an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Securities and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
"SECURITIES ACT"), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Security is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for an Unrestricted Definitive Security, the Owner
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hereby certifies (i) the Definitive Security is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Securities and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Security is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. In
connection with the Owner's Exchange of a Restricted Definitive Security for a
beneficial interest in an Unrestricted Global Security, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Securities
and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO UNRESTRICTED DEFINITIVE SECURITY. In connection with the Owner's
Exchange of a Restricted Definitive Security for an Unrestricted Definitive
Security, the Owner hereby certifies (i) the Unrestricted Definitive Security
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Securities and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Security is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL SECURITIES FOR RESTRICTED DEFINITIVE SECURITIES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL SECURITIES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL SECURITY TO RESTRICTED DEFINITIVE SECURITY. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Security for a Restricted Definitive Security with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Security is being
acquired for the Owner's own account without transfer. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Security issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Security and in the Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE
SECURITY TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. In connection
with the Exchange of the Owner's Restricted Definitive Security for a
beneficial interest in the [CHECK ONE] __144A Global Security, __ Regulation S
Global Security with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Securities and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Security and in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
----------------------------------
[Insert Name of Owner]
By:
-------------------------------
Name:
Title:
Dated: ,
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Chancellor Media Corporation of Los Angeles
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee Administration
Re: 8% Series Senior Notes due 2008
Reference is hereby made to the Indenture, dated as of
November 17, 1998 (the "INDENTURE"), among Chancellor Media Corporation of Los
Angeles, as issuer (the "COMPANY"), the guarantors named therein and The Bank
of New York, as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________
aggregate principal amount of:
(a) [ ] a beneficial interest in a Global Security, or
(b) [ ] a Definitive Security,
we confirm that:
1. We understand that any subsequent transfer of the
Securities or any interest therein is subject to certain restrictions and
conditions set forth in the Indenture and the undersigned agrees to be bound
by, and not to resell, pledge or otherwise transfer the Securities or any
interest therein except in compliance with, such restrictions and conditions
and the United States Securities Act of 1933, as amended (the "SECURITIES
ACT").
2. We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the Securities and
any interest therein may not be offered or sold except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any accounts
for which we are acting as hereinafter stated, that if we should sell the
Securities or any interest therein, we will do so only (A) to the Company or
any subsidiary thereof, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (c) to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter
and, if such transfer is in respect of a principal amount of Securities, at the
time of transfer, of less than $250,000, an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the
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108
Securities Act, and we further agree to provide to any person purchasing the
Definitive Security or beneficial interest in a Global Security from us in a
transaction meeting the requirements of clauses (A) through (E) of this
paragraph a notice advising such purchaser that resales thereof are restricted
as stated herein.
3. We understand that, on any proposed resale of the
Securities or beneficial interest therein, we will be required to furnish to
you and the Company such certifications, legal opinions and other information
as you and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Securities purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment.
5. We are acquiring the Securities or beneficial interest
therein purchased by us for our own account or for one or more accounts (each
of which is an institutional "accredited investor") as to each of which we
exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
-----------------------------------------
[Insert Name of Accredited Investor]
By:
---------------------------------------
Name:
Title:
Dated: ,
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