1
EXHIBIT 10.5
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD,
PLEDGED, OR OTHERWISE TRANSFERRED BY THE HOLDER HEREOF UNLESS SUCH HOLDER FIRST
SHALL HAVE FURNISHED INFORMATION REASONABLY SATISFACTORY TO THE COMPANY (WHICH
MAY INCLUDE, IN THE COMPANY'S SOLE DISCRETION, AN OPINION OF COUNSEL) THAT SUCH
SALE, PLEDGE, OR OTHER TRANSFER WILL NOT VIOLATE THE SECURITIES ACT OR ANY
APPLICABLE SECURITIES LAWS OF ANY OTHER JURISDICTION.
CAPSTAR BROADCASTING CORPORATION
Senior Secured Term Note
$150,000,000.00 May 29, 1998
FOR VALUE RECEIVED, the undersigned, Capstar Broadcasting Corporation,
a Delaware corporation (herein called the "Company"), promises to pay to the
order of Chancellor Media Corporation of Los Angeles ("Chancellor"), or its
legal successors or assigns, without setoff, counterclaim or deduction, by wire
transfer directly into such account as the holder hereof may in writing
designate to the Company, in lawful money of the United States of America, on
the Maturity Date (as defined below), the principal sum of ONE HUNDRED AND FIFTY
MILLION AND NO/100 DOLLARS ($150,000,000.00), or, if different from such amount,
the aggregate unpaid principal amount outstanding hereunder, together with
accrued interest at the rate or rates of interest and on the dates specified
herein.
1. Defined Terms. Terms used and not otherwise defined herein
shall have the meanings given such terms in the Letter Agreement (as defined
below). The following terms shall have the following definitions:
"Applicable Law" shall mean the law in effect from time to
time and applicable to the transactions between the holder hereof and
the Company pursuant to this Note which lawfully permits the charging
and collection of the highest permissible lawful, nonusurious rate of
interest on such transactions, including laws of any State of competent
jurisdiction, and to the extent providing for a higher lawful rate of
interest, applicable laws of the United States of America.
"Business Day" shall mean any day other than a Saturday or
Sunday on which national banking institutions are open for the
transaction of commercial business in Dallas, Texas.
"Capstar Senior Credit Facility" shall mean that certain
Credit Agreement dated as of May 29, 1998, among the Company, Capstar
Broadcasting Partners, Inc., Capstar Radio Broadcasting Partners, Inc.,
Bankers Trust Company, as a Co-Arranger and as Administrative Agent,
NationsBank, N.A., as a Co-Arranger and as Syndication Agent, Solomon
Brothers Holding Company Inc. and Xxxxxxx, Xxxxx Credit Partners L.P.,
as
Page 1 of 13
2
Co-Arrangers and as Documentation Agents, and the financial
institutions party thereto, as amended, modified or restated from time
to time.
"Event of Default" shall mean any of the following events: (a)
default in the payment of any principal or any other amount (other than
interest) on this Note when the same becomes due and payable (whether
on the Maturity Date, any date upon which a voluntary or mandatory
prepayment is required hereunder or otherwise); (b) default in the
payment of any interest on this Note when the same becomes due and
payable and the continuance of such default for a period of five days;
(c) the Company shall fail to observe or perform any covenant or
agreement contained in this Note or in any document securing this Note
(other than as provided in the foregoing subparagraphs (a) and (b)), or
any representation or warranty made herein shall fail to be true, and
such default shall continue unremedied for a period of 30 days after
written notice to the Company by the holder hereof; or (d) the Company
shall admit in writing its inability to pay its debts when due or shall
not be paying its debts generally, or shall make a general assignment
for the benefit of creditors, or any case shall be instituted by or
against the Company, seeking an order for relief under the bankruptcy
laws, or seeking reorganization, arrangement, adjustment or compromise
of its debts or under any law related to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking appointment of a
receiver, trustee, or other similar official for any substantial part
of its property and, in the case of any case instituted against the
Company, such case shall not have been dismissed within 60 days after
the institution of the same; or the Company shall take any corporate
action or authorize any of the actions set forth above in this
subparagraph (d).
"Exchange Hurdle" shall mean the closing of the purchase by
the Company and its Subsidiaries, in accordance with the procedures
described in Section 1 of the Letter Agreement, of radio stations
(excluding the Jacksonville Exchange and the purchase of the Austin
Stations) during the Exchange Period having an aggregate purchase price
(in each case determined in accordance with Section 1 of the Letter
Agreement) of (a) $100,000,000 by the last Business Day of the first
Loan Year, (b) $200,000,000 by the last Business Day of the second Loan
Year, and (c) $300,000,000 by the last Business Day of the third Loan
Year. The aggregate purchase price for radio stations purchased in any
Loan Year shall apply to the minimum amount of purchases to be closed
in any subsequent Loan Year.
"Fiscal Quarter" shall mean each fiscal quarter of the
Company.
"Highest Lawful Rate" shall mean the greater of (a) the
maximum rate of interest permitted at such time under any federal law
applicable to the indebtedness evidenced by this Note, or (b) the
"weekly ceiling" in effect at such time as that term is defined in
Article 5069-1D.003, Title 79, Revised Civil Statutes of Texas, 1925,
as amended (said Article hereinafter called the "Act"), and which would
be applicable to the indebtedness evidenced by this Note pursuant to
the Act.
"Letter Agreement" shall mean that certain Letter Agreement
dated as of February 20, 1998, between the Company and Chancellor, as
amended or modified from time to time.
Page 2 of 13
3
"Loan Year" shall mean the period (a) commencing on and
including the date hereof and ending on but excluding the first
anniversary of the date hereof, and (b) each one year period
thereafter.
"Maturity Date" shall mean the earliest of (a) the date which
is three years from the date on which the Company terminates the Letter
Agreement or any Definitive Agreement pursuant to Section 8(a)(iii)(A)
of the Letter Agreement, (b) the date on which the Company terminates
the Letter Agreement or any Definitive Agreement pursuant to Section
8(a)(iii)(B) of the Letter Agreement, or (c) the Stated Maturity Date.
"Stated Maturity Date" shall mean May 29, 2018.
"Subsidiary" shall have the meaning given such term in the
Capstar Senior Credit Facility.
2. Voluntary Prepayments. This Note is subject to optional
prepayment, in whole or in part, upon two Business Days prior written notice, in
minimum principal amounts of $1,000, together with the Cash Portion (as defined
and as calculated below) of all interest then due and owing. In the event any
voluntary principal payment hereunder is not accompanied by the Cash Portion of
all interest then due and owing, such prepayment shall be applied first to such
accrued and unpaid interest and then to principal. Any prepayments made under
this Section 2 shall not affect the holder's prepayment rights described in
Section 3 below.
3. Mandatory Prepayments. The holder hereof, in its sole
discretion, shall have the option to to cause the Company to make prepayments
with respect to this Note in the following amounts and on the following terms
and conditions:
(a) If the Company elects to acquire an Exchange Station pursuant
to an Exchange Station Agreement which is an asset purchase agreement
in accordance with Section 1(a)(1) of the Letter Agreement, the holder
hereof may require, upon 5 Business Days prior written notice, the
Company to prepay this Note in an amount equal to 50% of the cash
purchase price payable by Chancellor under an asset purchase agreement
for an SFX Station(s) entered into in connection with the Exchange
Station Agreement, such prepayment to be made concurrently with the
closing of the purchase by Chancellor from the Company of an SFX
Station(s) in connection therewith, as provided in Section 1(a)(1) of
the Letter Agreement. If, at any time during the Loan Year in which any
such closing takes place, the Company elected to defer the payment of
interest in accordance with Section 4(b) below, the prepayment amount
under this Section 3(a) shall be equal to the sum of (i) 50% of the
cash purchase price referred to in this subsection (a) plus (ii) the
product of (A) 50% of the cash purchase price referred to in this
subsection (a) times (B) a fraction, the numerator of which is the
number of days during such Loan Year interest accrued at the Deferral
Rate (as hereinafter defined) and the denominator of which is 360. Any
additional amounts owing to the holder hereof pursuant to the foregoing
sentence shall be paid within 10 Business Days following the end of the
applicable Loan Year.
Page 3 of 13
4
(b) If the Company causes Chancellor to acquire an Exchange
Station pursuant to an Exchange Station Agreement which is a stock
purchase agreement in accordance with Section 1(a)(2) of the Letter
Agreement, the holder hereof may require, upon 5 Business Days prior
written notice, the Company to prepay this Note in an amount equal to
50% of the cash purchase price payable under such Exchange Station
Agreement (after adjustments for working capital as provided for in the
Letter Agreement and in the applicable Asset Exchange Agreement, if
any), such prepayment to be made concurrently with the closing of the
purchase by Chancellor of stock under such Exchange Station Agreement,
as provided in Sections 1(a)(2) and (3) of the Letter Agreement. If, at
any time during the Loan Year in which any such closing takes place,
the Company elected to defer the payment of interest in accordance with
Section 4(b) below, the prepayment amount under this Section 3(b) shall
be equal to the sum of (i) 50% of the cash purchase price referred to
in this subsection (b) plus (ii) the product of (A) 50% of the cash
purchase price referred to in this subsection (b) times (B) a fraction,
the numerator of which is the number of days during such Loan Year
interest accrued at the Deferral Rate and the denominator of which is
360. Any additional amounts owing to the holder hereof pursuant to the
foregoing sentence shall be paid within 10 Business Days following the
end of the applicable Loan Year.
(c) Provided that the Company shall have received written notice
from the holder hereof at least 30 days prior to closing of the
purchase by Chancellor of the final SFX Station pursuant to an Asset
Purchase Agreement or an Asset Exchange Agreement that the holder
hereof intends to cause the Company to prepay the outstanding principal
balance hereof on the closing of such purchase, the Company shall
prepay the entire outstanding principal balance hereof together with
all accrued and unpaid interest concurrently with the closing of such
purchase.
(d) If Chancellor elects to purchase all of the remaining SFX
Station(s) pursuant to Section 1(i) of the Letter Agreement and
provided that the Company shall have received written notice from the
holder hereof at the time of such election that the holder hereof
intends to cause the Company to prepay the outstanding principal
balance hereof concurrently with the closing of such purchase, the
Company shall prepay the entire outstanding principal balance hereof
together with all accrued and unpaid interest concurrently with the
closing of such purchase.
(e) If the Company or any of its Subsidiaries purchases any radio
stations during the Exchange Period and does not comply with the
procedures set forth in Section 1 of the Letter Agreement, the holder
hereof may, upon 10 Business Days prior written notice, require the
Company to prepay this Note in an amount equal to 100% of the cash
purchase price paid by the Company or any of its Subsidiaries for any
such radio station, such prepayment to be made concurrently with the
closing of the purchase of such radio station. The Company shall
provide 30 days prior written notice to the holder hereof of the
Company's intention to purchase radio stations during the Exchange
Period that do not comply with the procedures set forth in Section 1 of
the Letter Agreement (such notice to be 30 days prior to the closing of
any such acquisition). This Section 3(e) shall not apply to (i)
purchases by the Company and its Subsidiaries pursuant to binding
agreements pending as of March 13, 1998, a
Page 4 of 13
5
complete list of which, including the call signs of radio stations to
be purchased thereunder, is attached hereto as Exhibit A, (ii) the
investment of proceeds received from the sale of radio stations
WFAS-FM, WZZN-FM, WRKI-FM, WAXB-FM, WPUT-AM, WTAE-AM, WJDX-FM and the
SFX Long Island Stations, (iii) the investment of proceeds received by
the Company and its Subsidiaries from the sale of radio stations that
are closed prior to March 13, 1998, (iv) the investment of proceeds
received by the Company and its Subsidiaries from the sale of radio
stations that are closed on or after March 13, 1998, where such radio
station sales are made pursuant to binding agreements pending as of
such date, a complete list of which, including the call signs of radio
stations to be sold thereunder, is attached hereto as Exhibit A, (v)
the investment of proceeds received by the Company and its Subsidiaries
from the sale of radio stations that are closed between March 13, 1998,
and the date that the Capstar-SFX Merger is consummated, in SBI Holding
Corporation or its Subsidiaries, (vi) other purchases of radio stations
during the Exchange Period having a maximum aggregate purchase price of
$20,000,000 (it being understood that the Company shall provide prompt
written notice to the holder hereof of consummation of all such
acquisitions, indicating the purchase price paid by the Company or its
Subsidiaries for such radio stations), and (vii) purchases of radio
stations by SFX and its Subsidiaries from the Company and its
Subsidiaries or by the Company and its Subsidiaries from SFX and its
Subsidiaries.
(f) If the Loan Decrease Conditions are satisfied, the Company
shall, without requirement of any notice from the holder hereof, use
any and all net proceeds resulting from the exercise of the
overallotment option granted by the Company to the underwriters for the
Company's initial public offering to prepay this Note so that,
immediately following such prepayment, no more than $150,000,000 in
principal amount of this Note remains outstanding (it being understood
that if such net proceeds are not adequate to prepay this Note so that
no more than $150,000,000 in principal amount of this Note remains
outstanding, the Company shall use all net proceeds to prepay this
Note). Any additional amounts that may be owing to the holder hereof
pursuant to the foregoing sentence shall be paid simultaneously upon
the Company's receipt of any such net proceeds.
Any prepayments made under this Section 3 shall be applied first to accrued and
unpaid interest and then to unpaid principal.
4. Interest. Interest on this Note shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months. Interest on this
Note shall accrue on the outstanding principal balance hereof from time to time
at the following per annum rates and shall be payable as follows:
(a) Subject to subsections (b) and (c) below, interest on this
Note shall accrue at a rate per annum of twelve percent (12%)(the
"Contract Rate") and shall be payable on the last Business Day of each
Fiscal Quarter (each, an "Interest Payment Date"). Such payment shall
be made at the Company's option, (i) entirely in cash, or (ii) 5/6 in
cash (the "Cash Portion") and 1/6 in the form of principal
automatically added to the outstanding principal balance hereof (the
"Capitalized Portion"). The Company shall provide the holder hereof 10
Business Days prior written notice of its intent to make any interest
payment in the manner
Page 5 of 13
6
provided in clause (ii) above. The Capitalized Portion shall accrue
interest at the rate otherwise applicable to the outstanding principal
balance of this Note.
(b) The Company shall have the option, on each Interest Payment
Date, to defer payment of the Cash Portion in which event interest on
the outstanding principal balance of this Note shall accrue at a rate
per annum of fourteen percent (14%)(the "Deferral Rate") for the period
commencing on the first day of the Fiscal Quarter in which such
Interest Payment Date occurred through and including the day on which
the Cash Portion of the deferred payment is paid in full in cash;
provided, that in the event of such deferral, as of the Interest
Payment Date on which such deferral occurred and on each Interest
Payment Date thereafter until the earlier to occur of the date that the
Cash Portion (as increased hereby) shall be paid in full and the date
that the Company is required to prepay all amounts, the Cash Portion
shall be increased to 6/7 of the interest then due and owing and the
Capitalized Portion shall be increased to 1/7 of the interest then due
and owing.
(c) If the Company does not achieve the applicable Exchange Hurdle
during any Loan Year, the interest rates applicable to the outstanding
principal balance hereof during such Loan Year shall be increased
retroactively by a rate per annum of two percent (2%). If the Company
does not achieve the applicable Exchange Hurdle during any Loan Year
and, as a result, the per annum interest rate applicable to this Note
during any period ending on an Interest Payment Date during such Loan
Year was (i) 14%, the Cash Portion and the Capitalized Portion shall be
retroactively adjusted as of each such Interest Payment Date to equal
6/7 and 1/7, respectively, or (ii) 16%, the Cash Portion and the
Capitalized Portion shall be retroactively adjusted as of each such
Interest Payment Date to equal 7/8 and 1/8, respectively. Within 30
days following the end of each such Loan Year, the Company shall pay to
the holder hereof an amount necessary to cause the aggregate Cash
Portion paid during such Loan Year to equal the aggregate Cash Portion
that would have been payable during such Loan Year if the adjustments
provided for pursuant to the foregoing sentence were in effect during
such Loan Year.
Notwithstanding anything herein to the contrary, (i) all accrued and unpaid
interest shall be payable in full in immediately available funds on the Maturity
Date, and (ii) in no event shall the rate of interest applicable to this Note
exceed the Highest Lawful Rate.
5. Covenants. So long as any principal or interest shall remain
due and owing hereunder:
(a) The Company shall not, and shall not permit any of its
Subsidiaries to create, incur, assume, acquire, guarantee or otherwise
become liable for any Indebtedness (as defined in the Capstar Senior
Credit Facility) after the date hereof if, on the date of, and after
giving effect to, the creation, incurrence, assumption, guarantee or
other acquisition of such additional Indebtedness, the Leverage Ratio
(as defined in the Capstar Senior Credit Facility), calculated on a Pro
Forma Basis (as defined in the Capstar Senior Credit Facility), would
exceed 9.0 to 1. For purposes of calculating the Leverage Ratio
hereunder, (i) during the calendar year 1998, there shall be included
in Consolidated EBITDA (as defined in the
Page 6 of 13
7
Capstar Senior Credit Facility) the greater of (x) the amount of net
revenues actually received by the Company and its Subsidiaries from the
AMFM Radio Network and (y) $10,000,000 regardless if such amount is
actually received as net revenues from the AMFM Radio Network, (ii)
there shall be excluded from Consolidated Indebtedness (as defined in
the Capstar Senior Credit Facility) $50,000,000 of borrowings by the
Company and its Subsidiaries under working capital lines of credit, and
(iii) there shall be included in Consolidated Indebtedness the
aggregate liquidation preference of all outstanding preferred stock of
the Company and its Subsidiaries as of any date of determination. The
parties hereto acknowledge and agree that the test set forth in this
Section 5(a) is an incurrence test and not a maintenance test and that
no Event of Default will occur hereunder as a result of the Company's
failure to maintain a Leverage Ratio of 9.0 to 1.
(b) The Company will not, directly or indirectly, (i) authorize,
declare or pay any dividend or make any distribution on shares of the
Company's capital stock, (ii) 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,
or (iii) 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 that is subordinate to or
junior in right of payment to this Note (each, a "Restricted Payment");
provided, that so long as no Event of Default exists or would be caused
by such Restricted Payment, the Company may make Restricted Payments in
an aggregate amount not to exceed $10,000,000.
(c) Prior to the initial borrowing by the Company under this Note,
the Company will furnish to Chancellor a certificate of the president,
chief financial officer or vice president of finance of the Company, in
form and substance reasonably satisfactory to Chancellor, certifying,
as of the date of the initial borrowing by the Company under this Note,
the arithmetical calculation required to establish compliance with the
requirements of Section 5(a) of this Note at such time and after giving
effect to such borrowing.
(d) Within 45 days after the last day of each Fiscal Quarter, the
Company will furnish to the holder of this Note a certificate of the
president, chief financial officer or vice president of finance of the
Company, in form and substance reasonably satisfactory to the holder of
this Note:
(i) setting forth, as at the time the Company created,
incurred, assumed, guaranteed or became liable for any Indebtedness
during such Fiscal Quarter, the arithmetical calculation required to
establish compliance with the requirements of Section 5(a) of this Note
at such time;
(ii) setting forth a list of any Restricted Payments made
during such Fiscal Quarter and specifying the amount of such Restricted
Payments; and
(iii) stating that, to the best of his or her knowledge, no
Event of Default has occurred as at the end of such Fiscal Quarter or,
if an Event of Default has occurred,
Page 7 of 13
8
disclosing such Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Company with
respect to such Event of Default.
(e) In the event that the Loan Decrease Conditions are not
satisfied, the Company agrees that it will not, and the Company shall
cause its Subsidiaries not to, enter into or consummate any
acquisitions of radio station assets or stock of entities owning radio
station assets (other than transactions pending as of May 4, 1998 and
transactions pursuant to Exchange Station Agreements) until such time
as the Company has made prepayments with respect to this Note so that,
following such prepayments, no more than $150,000,000 in principal
amount of this Note remains outstanding.
6. Representations and Warranties. The Company hereby represents
and warrants to Chancellor that, as of the date hereof:
(a) The Company has the corporate power and has taken all
necessary corporate action to authorize it to borrow hereunder, to
execute, deliver and perform the obligations under this Note, and to
execute, deliver and perform the obligations under the Stock Pledge
Agreement delivered concurrently herewith (the "Pledge Agreement").
This Note and the Pledge Agreement have been duly executed and
delivered by the Company, and this Note and the Pledge Agreement are
legal, valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors' rights
generally.
(b) No provision contained in the Company's material debt
instruments expressly prohibits interest payments on the Note (it being
understood that financial covenants contained in such instruments may
prevent, directly or indirectly, such interest payments after the date
hereof).
(c) No provision contained in the Company's material debt
instruments expressly prohibits the satisfaction of the Company's
prepayment obligations under the Note (it being understood that
financial covenants contained in such instruments may prevent, directly
or indirectly, the satisfaction of such prepayment obligations after
the date hereof).
7. Remedies. If an Event of Default occurs and is continuing,
then, the holder of this Note may declare the principal of and interest accrued
on this Note to be immediately due and payable, by notice in writing to the
Company, and upon and such declaration, such principal and accrued interest
shall become immediately due and payable; provided, that if an Event of Default
specified in clause (d) of the definition thereof shall occur, the principal of
and accrued interest on this Note shall immediately become due and payable
without requirement of notice. Notwithstanding the foregoing, the Company hereby
acknowledges and agrees that in collecting this Note, the holder hereof shall
have all rights, remedies and recourses (a) granted in this Note and any and all
documents evidencing, securing, guaranteeing or pertaining to this Note, and (b)
available at law or in equity, and all such rights, remedies and recourses (i)
shall be cumulative and concurrent, (ii) may be pursued separately, successfully
or concurrently against the Company and/or any other persons obligated for this
Note or any part thereof, or against any one or more of them, all
Page 8 of 13
9
at the sole and absolute discretion of the holder hereof, (iii) may be exercised
as often as occasion therefor shall arise, it being agreed by the undersigned
that the exercise of or failure to exercise any of same shall in no event be
construed as a waiver or release thereof or of any other right, remedy or
recourse, and (iv) are intended to be, and shall be, nonexclusive. The holder
hereof shall give 5 Business Days prior written notice to the administrative
agent under the Capstar Senior Credit Facility of the holder's intent to
accelerate the principal and accrued interest hereunder as a result of an Event
of Default.
8. Certain Expenses. If any Event of Default occurs, and if this
Note is placed in the hands of an attorney for collection or enforcement, or if
suit is filed hereon, or if proceedings are had in bankruptcy, receivership,
reorganization or other legal or judicial proceedings for the collection hereof,
the Company agrees to pay, in addition to the principal and interest due and
payable hereon, all costs of collecting this Note, including without limitation
reasonable attorneys' fees and expenses (whether or not legal proceedings are
instituted), incurred by the holder hereof.
9. Waiver. The Company and all sureties, endorsers and guarantors
of this Note waive demand, presentment for payment, notice of non-payment,
protest, notice of protest, notice of intent to accelerate, notice of
acceleration, and all other notice, filing of suit and diligence in collecting
this Note or enforcing any of the security herefor, and agree to any
substitution, exchange or release of any of such security or the release of any
party primarily or secondarily liable hereon and further agree that it will not
be necessary for any holder hereof, in order to enforce payment by the Company
of this Note, to first institute suit or exhaust its remedies against any others
liable herefor, or to enforce its rights against any security herefor, and
consent to any extensions or postponements of time of payment of this Note or
any other indulgences with respect hereto, without notice thereof to the
Company.
10. Liability. The Company agrees that the liability of the
Company shall not be in any manner affected by any forbearance, partial action
or delay on the part of the holder hereof in regard to the exercise of any
right, power or remedy under this Note.
11. Usury. It is the intent of the holder hereof and the Company
in the execution and performance of this Note to remain in strict compliance
with Applicable Law from time to time in effect. In furtherance thereof, the
holder hereof and the Company stipulate and agree that none of the terms and
provisions contained in this Note or any document securing or otherwise relating
to this Note shall be construed to create a contract to pay for the use,
forbearance or detention of money with interest at a rate or in an amount in
excess of the maximum rate or amount of interest permitted to be charged under
Applicable Law. For purposes of this Note, "interest" shall include the
aggregate of all charges which constitute interest under Applicable Law that are
contracted for, taken, charged, reserved, received or paid under this Note. The
Company shall not be required to pay unearned interest and shall not be required
to pay interest at a rate or in an amount in excess of the maximum rate or
amount of interest that may be lawfully charged under Applicable Law, and the
provisions of this paragraph shall control over all other provisions of this
Note, and of any other instrument pertaining to or securing this Note, which may
be in actual or apparent conflict herewith. If this Note is prepaid, or if the
maturity of this Note is accelerated for any reason, or if under any other
contingency the effective rate or amount of interest which would otherwise be
payable under
Page 9 of 13
10
this Note would exceed the maximum rate or amount of interest any holder of this
Note is allowed by Applicable Law to change, contract for, reserve or receive,
or in the event any holder of this Note shall charge, contract for, take,
reserve or receive monies that are deemed to constitute interest which would, in
the absence of this provision, increase the effective rate or amount of interest
payable under this Note to a rate or amount in excess of that permitted to be
charged, contracted for, taken, reserved or received under Applicable Law then
in effect, then the amount of interest which would otherwise be payable under
this Note shall be reduced to the amount allowed under Applicable Law as now or
hereinafter construed by the courts having jurisdiction, and all such monies so
charged, contracted for, taken, reserved or received that are deemed to
constitute interest in excess of the maximum rate or amount of interest
permitted by Applicable Law shall immediately be returned to or credited to the
account of the Company upon such determination. The holder hereof and the
Company further stipulate and agree that, without limitation of the foregoing,
all calculations of the rate or amount of interest contracted for, charged,
taken, reserved or received under this Note which are made for the purpose of
determining whether such rate or amount exceeds the maximum rate, shall be made,
to the extent not prohibited by Applicable Law, by amortizing, prorating,
allocating and spreading during the period of the full stated term of this Note,
all interest at any time contracted for, charged, taken, reserved or received
from the Company or otherwise by any holder of this Note.
12. Collateral. This Note is secured by a first priority,
perfected security interest in 100% of the common stock of Capstar Broadcasting
Partners, Inc. owned by the Company.
13. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and, unless otherwise specified,
shall be personally delivered, or shall be sent by overnight delivery, or shall
be sent by telecopy or other similar electronic device (with a copy sent by
certified or registered mail, return receipt requested, postage prepaid), and
shall be addressed as follows:
(a) If to the Company at:
Capstar Broadcasting Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Xx.
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxx
Xxxxxxxxx No.: (000) 000-0000
Page 10 of 13
11
(b) If to the holder hereof:
Chancellor Media Corporation of Los Angeles
000 Xxxx Xxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Xx. Xxxxxxx X. Xxxxxx
Xxxxxxxxx No.: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Suite 1300
Washington, D.C. 20004
Attention: Xxxx X. Xxxxxxxx
Xxxxxxxxx No.: (000) 000-0000
All notices and other communications shall be deemed to have been given either
at the time of actual delivery thereof to any officer or employee of the person
(or to such person if an individual) entitled to receive such notice at the
address of that person for purposes of this Section 12 or, if sent by telecopy
or other similar electronic devices, upon confirmation of receipt of such
transmission. Any person may change its address for notice by sending notice of
the new address to the other party hereto at least two (2) Business Days prior
to the effective date of the change of address.
14. Amendments. This Note may not be changed orally, but only by
an agreement in writing signed by each party hereto.
15. Governing Law. This Note shall be construed in accordance with
and governed by the laws of the State of Texas, without giving effect to any
conflicts of law rules thereunder.
16. Arbitration. The parties agree that any dispute arising out of
or relating to this Note or the Pledge Agreement (with respect to the Pledge
Agreement, only to the extent any such dispute is between the Company and the
holder hereof and such dispute does not affect the rights of any other secured
party under the Pledge Agreement) or the breach, termination, validity hereof or
thereof shall be finally settled by arbitration conducted expeditiously in
accordance with the Center for Public Resources Rules for Nonadministered
Arbitration of Business Disputes. The Center for Public Resources shall appoint
a neutral advisor from its National CPR Panel. The arbitration advisor shall be
governed by the United States Arbitration Act 9 U.S.C. xx.xx. 1-16, and judgment
upon the award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of arbitration shall be Dallas, Texas.
Notwithstanding anything to the contrary contained herein, the provisions of
this Section 16 shall not apply with regard to any equitable remedies to which
any party may be entitled under this Note or the Pledge Agreement.
Page 11 of 13
12
17. Jurisdiction for Venue. Each of the Company and the holder
hereof irrevocably agrees that in the event of any dispute involving this Note
or any other documents executed in connection herewith, venue for such dispute
shall lie in any court of competent jurisdiction in Dallas County, Texas.
18. Assignment. This Note and all the covenants, promises and
agreements contained herein shall be binding upon and inure to the benefit of
the respective successors, legal representatives and assigns of the holder
hereof and the Company; provided, that except in connection with a merger,
consolidation or sale of all or substantially all of the assets of the Company,
this Note may not be sold, assigned or otherwise transferred by the Company
without the prior written consent of the holder hereof.
[remainder of page intentionally left blank]
Page 12 of 13
13
THIS NOTE REPRESENTS THE FINAL AGREEMENT REGARDING THE SUBJECT MATTER
HEREOF BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES REGARDING THE
SUBJECT MATTER HEREOF. AS OF THE DATE HEREOF, THERE ARE NO UNWRITTEN ORAL
AGREEMENTS REGARDING THE SUBJECT MATTER HEREOF BETWEEN THE PARTIES.
CAPSTAR BROADCASTING CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Page 13 of 13
14
EXHIBIT A
Acquisition and Sale Agreements of the Company
pending as of March 13, 1998
1. Pending Acquisitions
Purchase Option Agreement dated March 5, 1997, between GulfStar Communications,
Inc. and Noalmark Broadcasting Corp. Stations: KKTX-FM and KKTX-AM.
Asset Purchase Agreement dated August 26, 1997, as amended, between KRNA, Inc.
and Capstar Acquisition Company, Inc. Station: KRNA-FM
Letter Agreement dated December 19, 1997, between University of Alaska and
Capstar Acquisition Company, Inc. Station: KUAB-FM.
Asset Purchase Agreement dated January 26, 1998, between Champion Broadcasting
Corporation, Champion of Alexandria, Inc., Champion of Amarillo, Inc., Champion
of Midland-Odessa, Inc., Champion Licensing Subsidiary, Inc. and Capstar
Acquisition Company, Inc. Stations: KMRK-FM, KCHX-FM, KCDQ-FM, KKST-FM, KRRV-FM,
KDBS-FM, KZMZ-FM, KBUY-FM, KIXZ-AM, KMML-FM and KNSY-FM.
Asset Purchase Agreement dated February 3, 1998, by and between Sunburst Media,
LP and SunGroup, Inc., RadioSunGroup of Texas, Inc., SunGroup Broadcasting of
New Mexico, Inc., SunGroup Broadcasting of Louisiana, Inc., RadioSunGroup of
Xxxxx/College Station, Inc., Big Bass Classicx, Inc., Air Signs, Inc., Arklatex,
Inc., Alpha-Web, Inc., Sun Management, Inc., Abilene Broadcasting, Inc. Station:
KMJJ-FM.
Asset Purchase Agreement dated as of March 6, 1998, by and between Capstar
Acquisition Company, Inc. and American Radio Systems Corporation. Stations:
WQSO-FM, WZNN-AM, WERZ-FM and WMYF-AM.
2. Pending Sales
Letter Agreement dated January 16, 1998, among Benchmark Radio Acquisition Fund
IV Limited Partnership, WOSC License Limited Partnership, WWF6 License Limited
Partnership, Cumulus Broadcasting, Inc. and Cumulus Licensing Corp. Stations:
WOSC-FM and WWFG-FM.
A-1
