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EXHIBIT 4.7
DECLARATION OF TRUST
OF
XXX RADIO TRUST II
THIS DECLARATION OF TRUST is made as of November 2, 1999 (this
"Declaration of Trust"), by and among Xxx Radio, Inc., a Delaware corporation,
as sponsor (the "Sponsor"), The Bank of New York, as trustee (the "Property
Trustee"), and The Bank of New York (Delaware), as trustee (the "Delaware
Trustee") (the Property Trustee and the Delaware Trustee being hereinafter
jointly referred to as the "Trustees"). The Sponsor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as Xxx Radio Trust II (the
"Trust"), in which name the Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate
of trust with the Delaware Secretary of State in accordance with the provisions
of the Business Trust Act.
3. An amended and restated Declaration of Trust satisfactory to each
party to it, in such form as the parties thereto may approve, will be entered
into to provide for the contemplated operation of the Trust created hereby and
the issuance of the Preferred or Capital Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Declaration of Trust, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustees may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including all pre-effective and post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred or Capital Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred or Capital Securities of the Trust required to be filed pursuant to
the 1933 Act, and (c) a Registration Statement on Form 8-A or other appropriate
form (the "1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the
Preferred or Capital Securities of the Trust under the Securities Exchange Act
of 1934, as amended; (ii) if and at such time as determined by the Sponsor, to
file with the New York Stock Exchange or other exchange, or the National
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Association of Securities Dealers ("NASD"), and execute on behalf of the Trust
a listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Preferred or Capital Securities of the Trust to be listed on the New York
Stock Exchange or such other exchange, or the NASD's Nasdaq National Market;
(iii) to file and execute on behalf of the Trust, such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents that shall be necessary or desirable to
register the Preferred or Capital Securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute and deliver letters or
documents to, or instruments for filing with, a depository relating to the
Preferred or Capital Securities of the Trust; and (v) to execute, deliver and
perform on behalf of the Trust an underwriting agreement with one or more
underwriters relating to the offering of the Preferred or Capital Securities of
the Trust.
In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, NASD, or state securities or "Blue Sky" laws to be
executed on behalf of the Trust by the Trustees, the Trustees, in their
capacity as trustees of the Trust, are hereby authorized to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustees, in their capacity as trustees of the Trust,
shall not be required to join in any such filing or execute on behalf of the
Trust any such document unless required by the rules and regulations of the
Commission, the New York Stock Exchange or other exchange, NASD, or state
securities or "Blue Sky" laws.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of trustees of the Trust initially shall be two
and thereafter the number of trustees of the Trust shall be such number as
shall be fixed from time to time by a written instrument signed by the Sponsor
which may increase or decrease the number of trustees of the Trust; provided,
however, that to the extent required by the Business Trust Act, one trustee of
the Trust shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. Subject to the foregoing, the Sponsor is
entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to the
Sponsor.
7. This Declaration of Trust shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
8. The Sponsor hereby agrees to indemnify the Trustees and any
of the officers, directors, employees and agents of the Trustees (the
"Indemnified Persons") for, and to hold each Indemnified Person harmless
against, any liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
XXX RADIO, INC.,
as Sponsor
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Authorized Signatory
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